May 20, 2026- Pegasus Legal Services for Children v. Board of Regents of the University of New Mexico, No. A-1-CA-41413

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: May 20, 2026	3
No. A-1-CA-41413	4
PEGASUS LEGAL SERVICES FOR CHILDREN;	5
ARACELI M., a minor; MARISELA	6
SANCHEZ; and ISAAC MAESTAS,	7
Plaintiffs-Appellants,	8
v.	9
BOARD OF REGENTS OF THE UNIVERSITY	10
OF NEW MEXICO, a body corporate of the	11
STATE OF NEW MEXICO, for itself and its	12
public operations; UNM HEALTH SCIENCES	13
CENTER, and its components; UNM HOSPITAL;	14
UNM SCHOOL OF MEDICINE; and DAVID G.	15
LEMON, M.D.,	16
Defendants-Appellees.	17
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	18
Nancy J. Franchini, District Court Judge	19
Durham, Pittard & Spalding LLP	20
Caren I. Friedman	21
Rosalind B. Bienvenu	22
Santa Fe, NM	23
Curtis & Co.	24
Lisa K. Curtis	25
Theresa V. Hacsi	26
Albuquerque, NM	27
for Appellants	28
5/20/2026 11:57 AM

2
Riley Keller Gonzales	1
David A. Gonzales	2
D. Chet Alderete	3
Spirit A. Gaines	4
Jared West	5
Albuquerque, NM	6
for Appellees	7

OPINION	1
IVES, Judge.	2
{1} This medical malpractice case requires us to apply the law of New Mexico	3
regarding multiple tortfeasors in the context of jury instructions. The key question	4
pertains to the successive tort rule that if “a first injury is caused by an original	5
tortfeasor[ and t]hat injury then causally leads to a second distinct injury, or a distinct	6
enhancement of the first injury, caused by a successive tortfeasor,” then the original	7
tortfeasor is jointly and severally liable for both injuries. Payne v. Hall, 2006-	8
NMSC-029, ¶¶ 12-13, 139 N.M. 659, 137 P.3d 599.	9
{2} The patient is Araceli M., who, as an infant, was diagnosed and treated by	10
several doctors over the course of several weeks, first in New Mexico and later in	11
Colorado. In New Mexico, Defendant Dr. David Lemon, an employee of Defendant	12
University of New Mexico Hospital (UNMH), removed significant portions of	13
Araceli’s colon. In Colorado, several medical providers who are not defendants	14
provided treatment, including surgeries that removed significant portions of	15
Araceli’s small intestine. The latter procedures resulted in a long-term condition	16
called short bowel syndrome. The jury returned a verdict in favor of Defendants.	17
{3} On appeal, Plaintiffs contend that the district court erred by denying Plaintiffs’	18
request for a jury instruction that would have allowed Plaintiffs to argue to the jury	19
that, under successive tort law, Defendants were jointly and severally liable for the	20

2
loss of Araceli’s small intestine and resulting short bowel syndrome. We hold that	1
the evidence raised fact questions for the jury about successive tort liability for one	2
of the two theories of negligence pursued by Plaintiffs, and that the absence of	3
successive tort law instructions on that theory was prejudicial to Plaintiffs. We also	4
hold that Plaintiffs did not raise their successive tort theory too late in the litigation	5
and that they preserved the instructional error issue. We therefore reverse and	6
remand for a new trial as to one of Plaintiffs’ two theories of negligence, but we	7
decline to disturb the jury’s verdict as to Plaintiffs’ other theory of negligence	8
because the jury received instructions on the law applicable to that theory.	9
BACKGROUND	10
I. The Evidence at Trial	11
{4} After Plaintiffs Marisela Sanchez and Isaac Maestas saw blood in the diaper	12
of their infant daughter, Araceli, they took her to a hospital in Las Vegas, New	13
Mexico. Given the seriousness of Araceli’s condition, Araceli was transferred to	14
UNMH in Albuquerque because that facility had a higher level of care and more	15
specialty services. A few hours after arriving that night, doctors at UNMH performed	16
an ultrasound and diagnosed Araceli with an ileocolic intussusception—a condition	17
in which the small intestine “telescopes” into the colon. To try to undo the	18
telescoping, they unsuccessfully attempted an air enema, which involved pushing air	19
through Araceli’s rectum. After the enema, Araceli underwent a computed	20

3
tomography (CT) scan, was monitored and treated in the pediatric intensive care unit	1
for the rest of the night, and, after blood tests showed her hematocrit and hemoglobin	2
levels were low, she received a blood transfusion.	3
{5} In the morning, a second attempt to undo the telescoping was made by Dr.	4
Lemon, a pediatric surgeon at UNMH. He performed a surgery called a subtotal	5
colectomy. The surgery involved removing a significant portion of Araceli’s colon	6
and a small amount of her small intestine, and then reattaching the remaining	7
portions and suturing Araceli’s mesentery.	8
{6} After the surgery, Dr. Lemon wrote in his operative note that he performed a	9
different operation: a right ileocolectomy with ileocolonic anastomosis. This surgery	10
would have involved the removal of less of Araceli’s colon than was removed, along	11
with the small amount of small intestine. After the surgery, Plaintiff Marisela	12
Sanchez, Araceli’s mother, did not recall Dr. Lemon telling her how much of	13
Araceli’s colon he removed.	14
{7} Araceli stayed at UNMH for a few more days. After she began to eat, urinate,	15
defecate, and pass gas normally, she was released from UNMH, and she returned	16
home to Pueblo, Colorado.	17
{8} Araceli was stable for a short time. However, after about two weeks, she	18
became fussy, stopped eating, and stopped sleeping. Her parents took her to a	19
hospital in Pueblo, which transferred her to a hospital in Colorado Springs. There,	20

4
several doctors, who we describe collectively as the Colorado doctors, took charge	1
of Araceli’s care. Dr. Kristen Darden, a radiologist, first performed an ultrasound,	2
after which she suspected Araceli had a repeat ileocolic intussusception—a second	3
episode of telescoping.	4
{9} To reverse the telescoping, Dr. David Bliss, a pediatric surgeon, then ordered	5
a contrast reduction enema, which Dr. Darden performed by instilling contrast dye	6
and air into Araceli’s colon and small intestine. Araceli’s condition only worsened.	7
After some time, the Colorado doctors performed a CT scan, which revealed that	8
Araceli had a “possible bowel obstruction [or a] possible volvulus” (a malrotation	9
of her intestine).	10
{10} Dr. Bliss performed exploratory surgery. He discovered Araceli’s small	11
intestine had herniated through a hole in her mesentery. Dr. Bliss performed	12
additional surgeries, removing significant portions of Araceli’s small intestine that	13
had died due to the hernia. The removal of her small intestine left her with a long-	14
term condition called short bowel syndrome. Because of this syndrome, Araceli has	15
great difficulty absorbing nutrients and has to be fed through a gastronomy tube	16
surgically placed in her stomach.	17
II. Procedural History	18
{11} Plaintiffs did not sue any of the Colorado doctors; they sued only Defendants,	19
alleging that their negligence caused Araceli’s injuries. Plaintiffs’ two theories of	20

5
the case were that Dr. Lemon acted negligently by failing to accurately communicate	1
the care he provided in his postoperative note and in his conversation with Araceli’s	2
parents and that he also acted negligently by failing to timely perform surgery and	3
by failing to properly close the mesentery.	4
{12} In their answers, Defendants denied that any of Araceli’s injuries were caused	5
by their negligence, and Defendants sought to shift the blame for Araceli’s short	6
bowel syndrome entirely to the Colorado doctors through a proximate cause defense	7
and, alternatively, sought to spread the blame through a comparative fault defense.	8
Specifically, Defendants contended that Dr. Darden improperly diagnosed Araceli	9
with an ileocolic intussusception; “failed to properly dilute the” substance used for	10
contrast in “the contrast and air enema”; and inserted, and “failed to recognize that	11
she had inserted,” the improperly diluted contrast in Araceli. Defendants also	12
contended that Dr. Bliss negligently ordered the enema; “failed to timely order a CT	13
[s]can”; “failed to timely diagnose [Araceli’s] bowel obstruction”; and failed to	14
inform the other Colorado doctors of Araceli’s recent surgery at UNMH. Despite	15
these allegations, Defendants did not seek to join any of the Colorado doctors as	16
parties.	17
{13} Plaintiffs sought to rebut Defendants’ theories both factually and legally, and	18
their legal rebuttal was based on a theory of successive tortfeasor liability. Plaintiffs	19
explicitly identified that theory for the first time after Defendants filed their answer	20

6
and after discovery closed, when Plaintiffs proposed to add the following language	1
and amend the original version of the pretrial order: “Defendants’ negligence caused	2
additional medical treatment and if any Colorado providers’ subsequent treatment	3
was provided negligently[,] it was foreseeable and Defendant is the original	4
tortfeasor and liable for that harm as well.” The district court rejected this addition.	5
{14} Following presentation of evidence at trial, Plaintiffs renewed their request to	6
present their successive tort theory to the jury. Plaintiffs proposed an instruction on	7
the topic that tracked UJI 13-1802B NMRA:	8
In this case, if you find that [Defendants] were negligent and	9
caused injury to [Plaintiff], they are also responsible for any harm	10
caused by medical care that [Plaintiff’s] injury reasonably required,	11
even if the medical care was negligently performed.	12
In support of their proposed instruction, Plaintiffs argued that successive tort law	13
applied to the evidence presented at trial and that they were pursuing the theory to	14
rebut Defendants’ theory that the Colorado doctors negligently caused Araceli’s	15
short bowel syndrome.	16
{15} Defendants opposed giving the jury a successive tort instruction for both	17
procedural and substantive reasons. Defendants’ procedural argument was that	18
Plaintiffs failed to plead the theory; that they raised it too late in the litigation; and	19
that allowing Plaintiffs to pursue the theory after the close of discovery would be	20
prejudicial to Defendants. Defendants’ substantive argument was that Plaintiffs	21
failed to prove their successive tort theory at trial.	22

7
{16} The district court ruled against Plaintiffs for purely procedural reasons,	1
concluding that Plaintiffs failed to plead successive tort theory and the parties did	2
not try the theory by consent. The court did not reach the substantive question of	3
whether the evidence might support successive tort liability, warranting an	4
instruction on the topic.	5
{17} Consistent with the district court’s ruling, the jury received instructions and a	6
special verdict form based on ordinary principles of medical negligence and	7
damages, including comparative fault. The special verdict form required the jury to	8
answer two questions of fact to determine whether Defendants were liable for any	9
damages. First, the jury was asked to decide whether Dr. Lemon was negligent.	10
Second, if he was negligent, the jury was asked to determine whether his negligence	11
was “a cause of a plaintiff’s injuries and damages.” Although the jury instructions	12
identified the different ways that Plaintiffs claimed Dr. Lemon had been negligent,	13
the verdict form did not ask the jury to specify which acts of alleged negligence by	14
Dr. Lemon were and were not proven by Plaintiffs. Nor did the verdict form ask the	15
jury to specify which injuries and damages were or were not caused by any negligent	16
act of Dr. Lemon. The verdict form’s lack of specificity with respect to the acts of	17
alleged negligence and the injuries claimed by Plaintiffs is consistent with the	18
example special verdict forms for personal injury cases, UJI 13-302F NMRA, and	19

8
with the verdict form for comparative fault cases, UJI 13-2220 NMRA, both of	1
which use general language: “negligence” and “injuries and damages.”	2
{18} During deliberations, the jury sent a note to the district court, asking whether	3
the term “injuries” in the verdict form “refer[s] specifically . . . to [Araceli’s] small	4
bow[e]l syndrom[e].” While discussing how to answer the question, the parties	5
emphasized the dispute over Araceli’s injuries. Plaintiffs argued that Araceli	6
suffered four discrete injuries. During her time at UNMH, because of the delayed	7
surgery, there was pain and suffering, loss of blood, and the loss of more of her colon	8
than necessary. Then, in Colorado, she developed short bowel syndrome. But	9
Defendants argued her only injury was the short bowel syndrome developed in	10
Colorado. The district court simply instructed the jury “to rely on the jury	11
instructions and the evidence provided.”	12
{19} The jury found that Dr. Lemon was negligent, but, consistent with the special	13
verdict form, the jury did not identify any specific act or acts of negligence.	14
However, the jury also found that Dr. Lemon’s negligence did not cause injuries or	15
damages. The jury therefore returned a verdict in favor of Defendants.	16
{20} Plaintiffs appeal the district court’s denial of their request to instruct the jury	17
on successive tortfeasor liability. Defendants respond that a successive tortfeasor	18
instruction was not supported by the evidence, was procedurally barred, and was not	19
properly requested.	20

9
DISCUSSION	1
{21} We discuss the three issues in this appeal in turn. First, we explain why we	2
conclude that the evidence did not warrant successive tort instructions as to	3
Plaintiffs’ theory that Dr. Lemon inaccurately communicated the type of surgery he	4
performed, but that the evidence did warrant successive tort instructions on	5
Plaintiffs’ theory that Dr. Lemon negligently delayed and negligently performed	6
surgery. Second, we explain why we disagree with the district court’s procedural	7
ruling that Plaintiffs could not pursue their successive tort theory because they raised	8
it too late in the litigation. Finally, we explain why we conclude that Plaintiffs	9
preserved their claim of error.	10
I. The Evidence at Trial Required Jury Instructions on Successive Tort	11
Law as to One of Plaintiffs’ Two Theories of Negligence	12
{22} Plaintiffs argue that the jury should have received an instruction on Plaintiffs’	13
successive tortfeasor theory because it was supported by the evidence presented at	14
trial. See Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161	15
P.3d 853 (“A party is entitled to instructions on all of [their] correct legal theories of	16
the case if there is evidence in the record to support the theories.”). According to	17
Plaintiffs, because the jury was not fully instructed on the applicable law, the	18
instructions were confusing, and Plaintiffs suffered prejudice.	19

10
{23} Reviewing the issue de novo, see id., we agree with Plaintiffs in part.1 We	1
disagree with Plaintiffs that successive tort law applies to their theory that Dr. Lemon	2
negligently described the surgery in his operative note and in his communication	3
with Araceli’s parents, but we agree with Plaintiffs that the evidence supported the	4
giving of jury instructions on successive tort law as to their theory that Dr. Lemon	5
negligently delayed and negligently performed the surgery. We explain the reasons	6
for these differing conclusions by first summarizing the relevant parts of New	7
Mexico’s legal framework for cases involving multiple tortfeasors. We then apply	8
that framework to the evidence presented at trial. In so doing, we explain why	9
1Defendants assert that our standard of review is abuse of discretion, citing
Sonntag v. Shaw, 2001-NMSC-015, ¶ 15, 130 N.M. 238, 22 P.3d 1188. Sonntag was
decided before Benavidez, which states that the standard of review is de novo, 2007-
NMSC-026, ¶ 19, and we have found no precedential or even nonprecedential
opinions from our Supreme Court or this Court that apply the abuse of discretion
standard of review set forth in Sonntag. Benavidez appears to be the last word from
our Supreme Court on the topic, and this Court has consistently relied on Benavidez.
See Hoeschen v. N.M. Dep’t of Transp., 2026-NMCA-023, ¶ 28, 584 P.3d 1136; City
of Albuquerque v. Tecolote Res., Inc., 2024-NMCA-029, ¶ 8, 544 P.3d 321;
Sandoval v. Gurley Props. Ltd., 2022-NMCA-004, ¶ 11, 503 P.3d 410; Lopez v.
Devon Energy Prod. Co., 2020-NMCA-033, ¶ 9, 468 P.3d 887; Mikeska v. Las
Cruces Reg’l Med. Ctr., 2016-NMCA-068, ¶ 23, 388 P.3d 266; Dills v. N.M. Heart
Inst., P.A., 2016-NMCA-023, ¶ 13, 367 P.3d 467; Silva v. Lovelace Health Sys., Inc.,
2014-NMCA-086, ¶ 13, 331 P.3d 958; Talbott v. Roswell Hosp. Corp., 2008-
NMCA-114, ¶ 25, 144 N.M. 753, 192 P.3d 267. And, in any event, the abuse of
discretion standard of review includes de novo consideration of the application of
the law to the facts, which is the task before us. See N.M. Right to Choose/NARAL
v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450 (“[E]ven when we
review for an abuse of discretion, our review of the application of the law to the facts
is conducted de novo.” (internal quotation marks and citation omitted)).

11
Plaintiffs’ negligent communication theory could only be pursued under concurrent	1
tort law, and why the evidence at trial required jury instructions on both concurrent	2
and successive tort law as to Plaintiffs’ theory that the surgery was negligently	3
delayed and performed. Finally, we explain why the absence of successive tort law	4
instructions as to the latter theory was prejudicial to Plaintiffs.	5
A. Legal Framework	6
{24} The law pertinent to this multiple tortfeasor case consists of a general rule and	7
an exception. The general rule is several liability, see Payne, 2006-NMSC-029, ¶ 11,	8
under which the fault of “each plaintiff, defendant, beneficiary, and non-party that	9
caused the plaintiff’s total damage” is compared so that each is liable for the portion	10
of damages they negligently caused. Richter v. Presbyterian Healthcare Servs.,	11
2014-NMCA-056, ¶ 63, 326 P.3d 50; see NMSA 1978, § 41-3A-1(A)-(B) (1987).	12
This general rule of several liability and comparative fault applies to concurrent	13
torts—that is, when “the negligent acts or omissions of two or more persons combine	14
to produce a single injury.” Lujan v. Healthsouth Rehab. Corp., 1995-NMSC-057,	15
¶¶ 8, 10, 120 N.M. 422, 902 P.2d 1025; see Payne, 2006-NMSC-029, ¶ 11 (“[W]hen	16
concurrent tortfeasors negligently cause a single, indivisible injury, the general rule	17
is that each tortfeasor is severally responsible for its own percentage of comparative	18
fault for that injury.” (emphasis omitted)).	19

12
{25} But when the torts are not concurrent but are instead successive, an exception	1
applies. See Payne, 2006-NMSC-029, ¶ 13. Under the exception, the first tortfeasor	2
is jointly and severally liable “for the full extent of both injuries, those caused by	3
both the original tortfeasor and the successive tortfeasor.” Id.; see § 41-3A-1(C)(4)	4
(stating that the doctrine of joint and several liability applies to situations “having a	5
sound basis in public policy”). The original tortfeasor may seek indemnification	6
from the successive tortfeasor but only for the second or enhanced injury. See Lujan,	7
1995-NMSC-057, ¶ 17.	8
{26} To distinguish between concurrent and successive torts, courts in our state	9
apply the rule succinctly stated by our Supreme Court in Payne: Torts are successive	10
only if the first tortfeasor negligently caused “a first injury” that “causally le[d] to a	11
second distinct injury, or a distinct enhancement of the first injury” that was “caused	12
by a successive tortfeasor.” 2006-NMSC-029, ¶ 12. This rule, as elaborated on in	13
Payne, can be distilled into five elements that must be established when—as in this	14
case—an injured plaintiff seeks to hold a defendant tortfeasor liable for a first injury	15
allegedly caused by the defendant, and also liable for a second injury that resulted	16
from the medical treatment for the first injury. The five elements are:	17
1. the first tortfeasor acted negligently, see id. ¶¶ 15, 19, 23, 29;	18
2. the first tortfeasor’s negligence was a proximate cause of—both a cause-in-	19
fact of and a foreseeable cause of—an injury, see id.;	20

13
3. the first injury was a proximate cause of—both a cause-in-fact of and a	1
foreseeable cause of—subsequent medical treatment, see id. ¶¶ 26-28, 30;	2
4. subsequent medical treatment was provided, either properly or negligently,	3
by a second tortfeasor, causing a second injury, see id. ¶¶ 15, 21, 32, 47; and	4
5. the first injury is causally distinct from the second injury, which is either a	5
separate injury or an enhancement of the first injury, see id. ¶¶ 14-15, 19, 22-23.2
6
Elements 1 and 2—negligence and causation of an injury—must, of course, also be	7
established in single-tortfeasor negligence cases, as well as in cases involving	8
concurrent tortfeasors. What sets successive tort liability apart is the addition of	9
elements 3, 4, and 5.	10
{27} The process for determining whether the elements of successive tort liability	11
have been established divides tasks between the trial judge and the jury in the	12
traditional manner. The judge answers questions of law, and the jury answers	13
questions of fact. This seems simple, but implementing it is sometimes complex. See	14
id. ¶¶ 42-43.	15
{28} Implementation is at its simplest when the evidence allows the judge to	16
determine, as a matter of law, that successive tort law does not apply. This	17
determination may be made when, for example, there is no evidence that an act of	18
alleged negligence caused distinct injuries, see id. ¶ 48, or when it is not foreseeable	19
2To simplify somewhat, we have stated the elements in terms of a single first
tortfeasor and a single second tortfeasor, even though in this case there were multiple
alleged second tortfeasors.

14
that the plaintiff would receive medical treatment for the first injury. See id. ¶¶ 19-	1
22, 28, 30 (recognizing that whether medical treatment was foreseeable is a legal	2
question). Of course, in situations like these, the jury should not receive any	3
successive tort instructions. The instructions should require the jury to apply the	4
general rule of concurrent torts by comparing fault.	5
{29} Implementation becomes somewhat more complex when the judge concludes	6
as a matter of law, or the parties agree, that successive tort law will apply if the jury	7
determines that the first tortfeasor negligently caused an original injury. This occurs	8
if elements 3, 4, and 5 are undisputed—that is, if medical treatment for the first injury	9
was foreseeable, see id. ¶¶ 26-28, 30, such treatment was provided and caused a	10
second injury, id. ¶ 28, and there are causally-distinct injuries. Id. ¶ 30. Then the	11
original tortfeasor will be jointly and severally liable for the second injury if the jury	12
finds that elements 1 and 2 have been proven—that is, if the first tortfeasor	13
negligently caused the first injury. Id. ¶¶ 12-13. This must be explained to the jury	14
using jury instructions tailored to fit the case. See id. ¶¶ 46-47; UJI 13-1802B.3
15
3The uniform successive tort instructions and verdict form that were in place
throughout the pendency of the district court proceedings were the versions of UJIs
13-1802B, 13-1802C NMRA, 13-1802D NMRA, and 13-2222 NMRA adopted by
our Supreme Court in 2007, shortly after Payne was decided. We note that while the
appeal in the present case was pending, an amended set of proposed uniform
instructions and a new set of proposed verdict forms on successive tort law was
published for comment by our Supreme Court. See Proposed Revisions to the
Uniform Jury Instructions-Civil, Proposal No. 2026-025 (Mar. 6, 2026),

15
{30} Implementation becomes even more complex when the jury must resolve	1
factual disputes pertaining to more than the first two elements. See Payne, 2006-	2
NMSC-029, ¶¶ 19, 23-25, 34-36, 40, 42-43. Payne illustrates this. There, our	3
Supreme Court concluded that the trial evidence regarding one of the plaintiffs’	4
theories required the jury to resolve factual disputes about whether negligent	5
provision of medical care by the first tortfeasor and lone defendant caused a first	6
injury that was separate and causally distinct from an injury caused by the second	7
tortfeasor, a different medical provider. Id. ¶¶ 19, 23-25. In other words, factfinding	8
by the jury was needed as to more than the elements of liability under ordinary tort	9
law for the first injury: negligence (element 1) and causation of an injury (element	10
2). See id. ¶ 23. Factfinding was also needed as to two of the elements unique to	11
successive tort liability: a second injury caused by the second tortfeasor (element 4)	12
and causal distinctness of the second injury from the first (element 5). Id. ¶¶ 24-25.	13
When, as in Payne, such extensive factfinding by the jury is required, the jury must	14
receive more elaborate instructions and verdict forms to ensure that the verdict is	15
based on the applicable law—which may be concurrent tort law or successive tort	16
law, depending on the facts found by the jury. Id. ¶¶ 43-47; see UJI 13-1802E	17
NMRA.	18
https://supremecourt.nmcourts.gov/wp-content/uploads/sites/2/2026/04/Proposal-
2026-025-Successive-Tortfeasor-no-comments-received.pdf.

16
{31} Complexity does not top out there. Its peak is reached when a plaintiff alleges	1
multiple acts of negligence by the first tortfeasor, and the jury is not required to play	2
the same role with respect to each act. For example, in Payne, as we have noted, the	3
evidence did not require the jury to play any role in determining whether one of the	4
plaintiff’s theories of negligence established successive tort liability, see 2006-	5
NMSC-029, ¶ 48, but the evidence required it to play a role as to the plaintiff’s other	6
theory of negligence, see id. ¶ 49. Under circumstances like these, the jury must	7
receive a separate set of instructions as to each theory and a verdict form specifically	8
tailored to the acts of alleged negligence and the specific injuries to which those acts	9
correspond. Id. ¶¶ 48-50.	10
B. The Evidence Presented Factual Disputes That Required Concurrent	11
Tort Law Instructions as to One Theory of Liability and Alternative	12
Instructions on Concurrent and Successive Tort Law as to the Other	13
Theory	14
{32} Having described the legal framework, we now answer the following question	15
as to each of Plaintiffs’ theories: whether the jury should have been instructed on	16
successive tort law so that it could determine whether Defendants were jointly and	17
severally liable for any of Araceli’s injuries. First, we explain why we conclude that	18
successive tort law does not apply as a matter of law to Plaintiffs’ theory that Dr.	19
Lemon negligently failed to accurately communicate which surgical procedure he	20
performed on Araceli, and that therefore only concurrent tort law applies to this	21
theory. Second, we explain why we conclude that jury instructions were needed so	22

17
that the jury could determine whether Plaintiffs had established the elements of	1
successive tort liability as to their theory that Dr. Lemon acted negligently by	2
delaying Araceli’s surgery and by improperly closing Araceli’s mesentery during	3
that surgery. This leads to our third conclusion: The absence of successive tort	4
instructions prejudiced Plaintiffs by preventing them from pursuing a potentially	5
viable theory of joint and several liability for Araceli’s short bowel syndrome.	6
1. Plaintiffs’ First Theory: Negligent Communication	7
{33} We agree with Defendants that successive tortfeasor law does not apply to	8
Plaintiffs’ theory that, in Dr. Lemon’s post-surgery note and in conversation with	9
Araceli’s parents, he did not accurately communicate which surgical procedure he	10
performed on Araceli at UNMH, and that these inaccuracies had an adverse impact	11
on the treatment Araceli received in Colorado. Plaintiffs’ theory appears to have	12
been—and, based on the evidence, could only have been—that Dr. Lemon’s	13
negligent communication was a cause of Araceli’s short bowel syndrome. The	14
problem Plaintiffs face with respect to this theory is identical to the problem faced	15
by the plaintiffs in Payne. There, as here, one of the theories of negligence was that	16
the first tortfeasor failed to communicate the patient’s medical history to the second	17
tortfeasor, which was a medical provider. Payne, 2006-NMSC-029, ¶ 48. Our	18
Supreme Court recognized that such a “theory cannot support a successive tortfeasor	19
claim” when there is no evidence that the first tortfeasor caused a first injury that	20

18
was then followed by a second injury caused by the second tortfeasor. Id. In other	1
words, the allegedly negligent communication caused only “a single injury”—the	2
injury that occurred when the second tortfeasor provided medical care to the patient.	3
Id. Because only one injury was allegedly caused by the failure to share the patient’s	4
medical history in Payne, successive tort law did not apply to that theory of	5
negligence.	6
{34} The same is true here. Plaintiffs did not contend that Dr. Lemon’s inaccurate	7
communication caused an injury that then foreseeably required further medical	8
treatment in Colorado. This becomes clear when we parse the theory, considering	9
each claimed injury and alleged act of negligence. Plaintiffs did not present evidence	10
that the communication failures caused any of the injuries that allegedly occurred	11
while Araceli was receiving treatment from Defendants: blood loss, pain and	12
suffering, and loss of more of her colon than necessary. Those injuries allegedly	13
occurred because Dr. Lemon negligently delayed surgery. Nor did Plaintiffs present	14
evidence that the inaccurate communications caused Araceli’s mesentery to open	15
before she began receiving treatment in Colorado. That injury occurred, according	16
to Plaintiffs’ expert, because Dr. Lemon delayed surgery and failed to properly close	17
Araceli’s mesentery, which allowed it to open after she left UNMH. The only injury	18
that the negligent communication could possibly have contributed to, based on the	19
evidence, was Araceli’s short bowel syndrome—the injury that Araceli suffered	20

19
when her small intestine was removed in Colorado. The theory was that Dr. Lemon’s	1
failure to communicate had a negative impact on the care provided in Colorado	2
because the providers there diagnosed and treated Araceli relying on inaccurate	3
information about her medical history. In other words, the alleged negligence of Dr.	4
Lemon’s poor communication combined with the actions of the Colorado doctors to	5
cause a single injury: short bowel syndrome. Payne teaches that such theories may	6
not be pursued under successive tort law and may only be pursued under concurrent	7
tort law. 2006-NMSC-029, ¶ 48. We therefore hold that the evidence did not support	8
successive tort instructions for this theory, and because the jury received complete	9
instructions on the law applicable to this theory—concurrent tort law—we decline	10
to undo the jury’s verdict in favor of Defendants on this theory.	11
2. Plaintiffs’ Second Theory: Negligently Delaying and Performing Surgery	12
{35} We reach a different conclusion about Plaintiffs’ other theory of negligence:	13
that Dr. Lemon negligently delayed and negligently performed Araceli’s surgery. As	14
to this theory, the jury did not receive instructions regarding all the law that	15
potentially applied to the evidence. The jury only received instructions on concurrent	16
tort law, but the evidence presented factual disputes about whether successive tort	17
law or concurrent tort law applied. We hold that, as to this theory, the evidence	18
supported successive tort instructions, and the jury should have been instructed on	19
both successive and concurrent tort law in the alternative. We explain the reasons	20

20
for our holding by first describing Plaintiffs’ theory and Defendants’ defense, and	1
then describing how the evidence created factual disputes about whether the	2
elements of successive tort liability were satisfied.	3
{36} Plaintiffs contended that two acts of negligence by Dr. Lemon combined to	4
cause Araceli’s mesentery to herniate before she received treatment in Colorado.	5
The first act of alleged negligence was delaying Araceli’s surgery. Plaintiffs	6
presented evidence that the delay allowed more of Araceli’s colon to die, requiring	7
removal of more of Araceli’s colon than would have been required had she received	8
timely surgery. Removal of more of her colon entailed making a larger hole in her	9
mesentery. Plaintiffs presented evidence that Dr. Lemon acted negligently a second	10
time by failing to properly close that hole. These acts of negligence combined,	11
according to Plaintiffs’ expert, to cause the mesentery to herniate, reopening a hole	12
through which Araceli’s small intestine passed, cutting off the blood flow and	13
causing it to die.	14
{37} All of this was disputed by Defendants. They presented evidence that Dr.	15
Lemon did not negligently cause any of Araceli’s injuries and that her most serious	16
injury, short bowel syndrome, was caused exclusively by the Colorado doctors.	17
Defendants’ expert testified that the timing of Dr. Lemon’s surgery and his	18
performance of the surgery itself were appropriate, leading to a successful outcome,	19
and that there was no hernia and therefore no dead intestinal tissue before Araceli	20

21
received treatment in Colorado. The hernia, according to Defendants’ expert,	1
occurred only because the Colorado doctors negligently diagnosed Araceli and then	2
negligently treated her by giving her an enema, placing excessive pressure on the	3
sutured mesentery, which forced it to reopen.	4
{38} The evidence at trial created factual disputes that required jury instructions	5
regarding the elements of successive tort liability. We discuss each element in turn.	6
{39} The jury should have considered, and did consider, the first and second	7
elements: whether Dr. Lemon was negligent and whether any negligence by him	8
caused injury. As we have described, the parties vigorously disputed these elements	9
at trial, supporting their positions with expert testimony. Defendants did not contend	10
at trial and do not contend on appeal that the evidence presented by Plaintiffs was	11
insufficient to create factual questions for the jury as to these elements. Indeed, if	12
the evidence did not present factual questions for the jury as to these elements, which	13
are essential to every negligence claim, Plaintiffs’ case should not have gone to the	14
jury at all.	15
{40} The evidence also presented factual disputes about the third element: whether	16
Dr. Lemon’s negligence caused Araceli to need medical treatment after she left	17
UNMH and returned home to Colorado. Plaintiffs’ expert testified that if Dr. Lemon	18
had not been negligent in delaying surgery and failing to close Araceli’s mesentery	19
adequately, Araceli likely never would have needed treatment in Colorado. Plaintiffs	20

22
contended that the Colorado providers treated Araceli for injuries she suffered	1
because of Dr. Lemon’s negligence. Defendants’ expert testified to the contrary that	2
the condition for which Araceli received treatment in Colorado was not caused by	3
Dr. Lemon’s negligence but was instead a condition that arose spontaneously and	4
was then negligently diagnosed and treated by the Colorado doctors, as described	5
above. The conflicting evidence created a question of fact that should have been	6
answered by the jury.	7
{41} Turning to the fourth element, the jury could have found in favor of Plaintiffs	8
because the parties did not dispute that the medical treatment provided in Colorado	9
was a cause of Araceli’s short bowel syndrome. Indeed, the parties’ experts agreed	10
that the surgeries in Colorado, which removed Araceli’s small intestine, were the	11
ultimate cause of Araceli’s short bowel syndrome—a condition that only occurs	12
when the small intestine is removed.	13
{42} Before discussing the fifth element, we pause to address an important legal	14
point regarding the fourth element about which there was some confusion in this	15
case. At trial and in their brief on appeal, Defendants argued that Plaintiffs’ position	16
that the Colorado doctors acted heroically—providing treatment appropriately rather	17
than negligently—barred Plaintiffs from relying on a theory of successive tort	18
liability. However, at oral argument before this Court, Defendants’ counsel candidly	19
conceded that Defendants’ original position was incorrect. In the hope of preventing	20

23
similar confusion in future cases, we reiterate that proof of negligence by the second	1
tortfeasor, or actor, is not required.4 “When a person causes an injury to another	2
which requires medical treatment, it is foreseeable that the treatment, whether	3
provided properly or negligently, will cause additional harm. Therefore, the person	4
causing the original injury is also liable for the additional injury caused by	5
subsequent medical treatment, if any.” Payne, 2006-NMSC-029, ¶ 47 (emphasis	6
added) (internal quotation marks omitted); accord Lujan, 1995-NMSC-057, ¶ 14;	7
see also UJI 13-1802B (explaining that the original tortfeasor is “responsible for any	8
harm caused by medical care that the plaintiff’s injury reasonably required, even if	9
the medical care was negligently performed”).	10
{43} The fifth element presented a fact question for the jury: whether the treatment	11
provided by the Colorado doctors caused a second or enhanced injury that was	12
causally distinct from an original injury caused exclusively by Defendants. As	13
Defendants acknowledge on appeal, “the divisibility of injuries” was disputed at	14
trial. Defendants note that they have “always maintained and argued that there was	15
4The use of the word “tortfeasor” is potentially confusing. In many contexts,
“tortfeasor” is used in a strictly technical sense to refer to a “wrongdoer”—
“[s]omeone who commits a tort,” by negligently, recklessly, or intentionally causing
harm to another. Tortfeasor, Black’s Law Dictionary (12th ed. 2024). However,
Lujan and Payne teach that, when used to refer to a person who is a “successive
tortfeasor,” the word “tortfeasor” has a broader meaning—someone whose conduct
causes harm, even if that person did not act negligently. See Payne, 2006-NMSC-
029, ¶ 8; Lujan, 1995-NMSC-057, ¶ 14.

24
one, singular injury, [Araceli’s] short bowel syndrome, which [Defendants]	1
contended was caused directly and solely by the [Colorado doctors].” In support of	2
their position, Defendants presented the expert testimony, as we have described. But,	3
as we have also described, Plaintiffs presented a very different narrative involving	4
negligence by Dr. Lemon and several injuries. Plaintiffs’ expert testified that	5
Araceli’s colon had to be removed because Dr. Lemon negligently delayed surgery;	6
that during that surgery he failed to properly close the mesentery; and that that failure	7
caused a hole in her mesentery to open, eventually requiring medical care in	8
Colorado, including the removal of her small intestine. Based on this version of	9
events, a reasonable jury could have found causally-distinct injuries—that the	10
removal of her small intestine caused short bowel syndrome, which was either a	11
distinct second injury or an enhancement of a first injury caused exclusively by Dr.	12
Lemon.5 See Payne, 2006-NMSC-029, ¶¶ 13, 15. In sum, the evidence presented	13
5 In Lujan, our Supreme Court identified the existence of “divisible and
causally-distinct injuries” as the touchstone for successive torts, but then noted that,
to distinguish between successive and concurrent tortfeasors, “courts [in other
jurisdictions] have considered several other factors that are relevant.” 1995-NMSC-
057, ¶ 11 (emphasis added). Our Supreme Court did not explicitly adopt these factors
in Lujan, and it has not adopted or even mentioned them in any subsequent
precedents, including Payne. We note that the out-of-jurisdiction case relied upon
by Lujan holds that “[w]hether liability for harm to a plaintiff is capable of
apportionment is a question of law for the court,” Voyles v. Corwin, 441 A.2d 381,
383 (Pa. Super. Ct. 1982), but that—after Lujan was decided—our Supreme Court
made clear in Payne that the divisibility question is sometimes for the jury. 2006-
NMSC-029, ¶ 43. For these reasons, it is unclear to us whether the factors mentioned
in Lujan are part of New Mexico law. Although our conclusion as to the fifth element

25
questions of fact for the jury about whether Araceli suffered a single, indivisible	1
injury or causally-distinct, divisible injuries.	2
{44} For these reasons, we conclude that the evidence at trial could have allowed a	3
reasonable jury to find that all five of the elements of successive tortfeasor liability	4
were satisfied as to the theory that Dr. Lemon negligently delayed and negligently	5
performed surgery. We therefore hold that, for this theory, the jury should have been	6
instructed on both successive tort law and concurrent tort law as alternatives. See id.	7
¶¶ 44-47. The upshot of this holding, together with our holding regarding Plaintiffs’	8
negligent communication theory, is that here, as in Payne, the evidence warranted	9
only concurrent tort instructions as to one of Plaintiffs’ theories, but warranted	10
alternative concurrent and successive tort instructions as to its other theory. See id.	11
¶¶ 48-50.	12
C. Prejudice to Plaintiffs	13
{45} We believe that Plaintiffs were prejudiced by the absence of successive tort	14
law instructions on Plaintiffs’ theory that Dr. Lemon negligently delayed and	15
performed surgery. Prejudice occurred because the jury did not receive guidance	16
hinges on the existence of factual disputes about whether the injuries are divisible,
our conclusion could also be supported by the Lujan factors that seem applicable to
the claims, defenses, and evidence in this case. The medical care at issue was
provided by different medical providers in different states at different times, the bulk
of the evidence relevant to these separate instances of medical care does not overlap,
and the nature of the injuries is not the same. See Lujan, 1995-NMSC-057, ¶ 11.

26
about the law that applied to Plaintiffs’ theory that Defendants were jointly and	1
severally liable for Araceli’s short bowel syndrome. See Benavidez, 2007-NMSC-	2
026, ¶ 25 (concluding that prejudicial error occurred because the jury was not fully	3
instructed regarding the applicable law and because the absence of an instruction	4
deprived the plaintiff “of an important part of her theory” of liability). Importantly,	5
this theory, if accepted by the jury, could have supported a verdict holding	6
Defendants jointly and severally liable for Araceli’s short bowel syndrome even if	7
the jury concluded that the Colorado doctors were negligent, as Defendants	8
contended. In other words, successive tort law provided a basis for completely	9
rebutting Defendants’ defense. That rebuttal could have resulted in a verdict for	10
Plaintiffs if the jury found that Defendants and the Colorado doctors were negligent	11
causes of distinct injuries: an original injury which required subsequent medical	12
treatment that, whether provided negligently or properly, caused a second injury.	13
This theory was based on successive tort law, and the lack of instructions on	14
successive tort law prevented Plaintiff from arguing—and the jury from	15
considering—the theory. See Kirk Co. v. Ashcraft, 1984-NMSC-065, ¶ 6, 101 N.M.	16
462, 684 P.2d 1127 (concluding that an instructional error was prejudicial because	17
it prevented the jury from fully considering the law applicable to the defendant’s	18
theory of the case); Sutherlin v. Fenenga, 1991-NMCA-011, ¶ 17, 111 N.M. 767,	19
810 P.2d 353 (explaining that reversible error occurs when the absence of jury	20

27
instructions that are justified by the facts results in “the slightest prejudice”). The	1
jury instructions were deficient because they required the jury to consider all of	2
Plaintiffs’ theories under the general rule, several liability, and prevented the jury	3
from considering whether the exception, joint and several liability, applied to one of	4
Plaintiffs’ theories.	5
{46} Instructed only on several liability, this jury determined that Dr. Lemon’s	6
negligence did not cause Araceli’s injuries. But because the instructions were limited	7
to several liability, the jury was not asked to consider whether there were two injuries	8
and whether the first caused the need for additional medical care that in turn, caused	9
the second. Thus, as to the negligence theory that warranted alternative concurrent	10
and successive tort instructions, the jury “was asked the wrong question,” and “we	11
lack confidence in the jury’s verdict, especially when it found negligence but no	12
causation for any of [Araceli]’s injuries.” See Payne, 2006-NMSC-029, ¶ 36.	13
Because the given instructions precluded Plaintiffs from arguing, and the jury from	14
finding, that Defendants caused an injury that led to a second injury, Araceli’s short	15
bowel syndrome, Plaintiffs were prejudiced.	16
{47} Our dissenting colleague reaches the opposite conclusion, but we perceive no	17
basis for holding that the error in this case was harmless. The dissent asserts that this	18
case is unlike Payne because here the jury was “properly instructed on the core	19
element of causation as to Defendants, and found there to be none.” Dissent ¶ 65.	20

28
But this also happened in Payne, and yet our Supreme Court reversed because the	1
jury was not properly instructed on successive tort law. In Payne—just as in this	2
case—the jury received an instruction that “defined proximate cause without	3
differentiating between the original injury and the successive injury.” 2006-NMSC-	4
029, ¶ 33. In Payne—just as in this case—the verdict form did not differentiate	5
injuries. See id. ¶ 9. The jury in Payne was asked whether the first tortfeasor’s	6
“negligence ‘was a proximate cause of the injuries and damages,’” id. ¶¶ 9, 33	7
(emphasis omitted), and the jury in this case was asked whether Dr. Lemon’s	8
negligence was “a cause of a plaintiff’s injuries and damages.”6 And in Payne—just	9
as in this case—“the jury returned a special verdict finding that [the first tortfeasor]	10
was negligent but not a proximate cause of [the plaintiff’s] injuries and damages.”	11
2006-NMSC-029, ¶ 10. But none of this rendered the improper successive tort	12
6The dissent contends that Plaintiffs “fail[ed] to request a special verdict form
that would clarify exactly what Dr. Lemon did negligently from the four types they
alleged.” Dissent ¶ 69. We do not blame Plaintiffs for the lack of specificity. The
district court requested the special verdict form after it ruled that the jury would not
be instructed on successive tort law and would be instructed only on concurrent tort
law. Consistent with the district court’s ruling, Plaintiffs submitted a special verdict
form that included the general language regarding negligence, injuries, and damages
that appears in the Uniform Jury Instructions that our Supreme Court has adopted
for use in concurrent tort cases. See UJI 13-2220 (requiring the jury to determine
whether “any negligence” of the defendant was “a cause of [the] plaintiff’s injury
and damages”). And when Plaintiffs submitted the special verdict form, they stated
that they were not waiving their contention that successive tort law applies. We will
not fault Plaintiffs for complying with the district court’s ruling at the time of trial
and then challenging that ruling on appeal based on the trial record available to them.

29
instructions in Payne harmless because—although “the jury was asked about the	1
causation of injuries considered as a whole”—our Supreme Court concluded that the	2
jury “was never asked the critical question about causation of a separate, original	3
injury” by the first tortfeasor. Id. ¶ 33. Our Supreme Court observed that the “generic	4
negligence jury instructions” that were used “asked about causation of [the	5
p]laintiff’s ‘injuries,’ possibly all of them considered together, without	6
differentiating between what [the first tortfeasor’s] negligence caused and what the	7
[second tortfeasor’s] negligence caused.” Id. ¶ 34. In short, because the jury “was	8
asked the wrong question,” our Supreme Court “lack[ed] confidence in the jury’s	9
verdict, especially when it found negligence but no causation for any of [the	10
p]laintiff’s injuries.” Id. ¶ 36. This reasoning applies fully to the present case, and it	11
points to the same conclusion: the error was prejudicial, not harmless.	12
{48} Because the error in this case prevented the jury from answering critical	13
questions about causation, we disagree with the dissent that the verdict may be	14
salvaged by applying the general verdict rule. Dissent ¶¶ 68-69. As the dissent	15
acknowledges, the general verdict rule does not apply when the jury received an	16
erroneous instruction. See, e.g., Bustos v. Hyundai Motor Co., 2010-NMCA-090, ¶	17
48, 149 N.M. 1, 243 P.3d 440 (“A general verdict may be affirmed under any theory	18
supported by evidence unless an erroneous jury instruction was given.”). Here, the	19
jury received erroneous instructions that prevented the jury from considering	20

30
Plaintiffs’ successive tort theory—a theory that could have fully rebutted	1
Defendants’ defenses and resulted in a verdict in favor of Plaintiffs. The general	2
verdict rule therefore does not apply.	3
{49} The dissent’s expansive application of the general verdict rule appears to be a	4
novel one. The dissent cites no case in which a court has applied the general verdict	5
rule when, as in this case, the jury was prevented from considering a theory, and we	6
are aware of no such case. The dissent relies exclusively on cases in which the	7
appellants were seeking to undo jury verdicts by arguing that the jury should not	8
have considered one or more alternative theories of liability that were presented at	9
trial. See Goodman v. OS Rest. Servs., LLC, 2020-NMCA-019, ¶¶ 16-19, 461 P.3d	10
906 (explaining that, under the general verdict rule, “if the jury’s verdict is legally	11
sustainable on any . . . theory [of liability] advanced by [the p]laintiff, we need	12
consider its propriety no further”); Bustos, 2010-NMCA-090, ¶¶ 47-49 (applying the	13
general verdict rule to uphold a verdict for the plaintiffs because any error in	14
permitting the plaintiffs to present evidence to the jury about an alternative theory	15
of liability was harmless when there was substantial evidence to support the verdict	16
based on a different theory). Under such circumstances, the rationale for affirming	17
based on the general verdict rule is an assumption that jury’s verdict was based on	18
any of the legally and factually viable theories that the jury did, in fact, consider. See	19
Bustos, 2010-NMCA-090, ¶ 49 (“[W]e must assume the jury accepted the theory	20

31
argued by counsel that was supported by substantial evidence.”). That rationale does	1
not apply to a verdict returned by a jury that did not consider a viable theory	2
erroneously omitted from the jury instructions. Such verdicts require a different	3
analysis because they present a different question: whether the omission was	4
prejudicial. Here, it was. Because the jury did not consider the theory of successive	5
tort—and the unique questions of fact that arise under that theory—the general	6
verdict rule does not allow us to conclude that the error was harmless.	7
II. Plaintiffs Timely Raised Their Successive Tort Theory	8
{50} Defendants argue that the district court correctly refused to instruct the jury	9
on Plaintiffs’ successive tortfeasor theory because Plaintiffs raised that theory too	10
late in the proceedings and allowing Plaintiffs to pursue that theory after discovery	11
closed would be unfairly prejudicial to Defendants. Plaintiffs argue that, under Saiz	12
v. Belen School District, 1992-NMSC-018, 113 N.M. 387, 827 P.2d 102, their	13
successive tort theory was a rebuttal to Defendants’ defenses and was therefore	14
raised in a timely fashion. We agree with Plaintiffs.	15
{51} In Saiz, a young child died from electrocution when he simultaneously	16
touched a metal fence surrounding a high school football field and an electrical	17
conduit on the field’s lighting system. Id. ¶¶ 1-4. The metal fence was installed by	18
the defendant, and the lighting system was designed and installed by the defendant’s	19
contractors. Id. ¶ 3. The child’s estate sued only the defendant, contending that the	20

32
electrical system was negligently installed and maintained, and that the defendant	1
was liable for the acts of its contractors. Id. ¶ 5. In its answer, the defendant raised	2
as an affirmative defense the fault of others, and at trial the defendant “sought to lay	3
off damages against various nonparties,” including an architect and an electrician	4
who had done work for defendant as independent contractors. Id. ¶¶ 6. The estate	5
responded to this defense by seeking to hold the defendant jointly and severally	6
liable for the harm caused by the independent contractors because they were engaged	7
in inherently dangerous activities. Id. ¶¶ 7-9. This Court rejected the estate’s	8
argument, concluding, as relevant here, that the estate was required to raise the joint	9
and several liability claim in its pleadings, but that the estate failed to do so. Id. ¶ 9.	10
{52} Our Supreme Court disagreed, holding that the estate was permitted to raise	11
its theory of joint and several liability for the first time at trial. Id. ¶¶ 38-40. The	12
Court recognized that the plaintiff’s pursuit of its theory of the case at trial “does not	13
preclude the plaintiff from rebutting any other theory offered by way of defense.”	14
Id. ¶ 40. The Court recognized that “[w]here a defendant seeks to avoid liability	15
through the apportionment of fault to other tortfeasors, the defendant should	16
anticipate that, for any number of reasons, the defense may be subject to attack at	17
trial.” Id. The Court relied on “Rule 1-012(B) [NMRA, which] specifically provides	18
a party may raise at trial any issue in law or fact raised by a pleading to which that	19
party is not required to respond.” Saiz, 1992-NMSC-018, ¶ 40. The implication is	20

33
that because the defendant included an affirmative defense in its answer to the	1
complaint blaming others for the child’s death, and because the estate was not	2
required to file a pleading in response to defendant’s answer, the estate was	3
permitted to raise its rebuttal to the affirmative defense for the first time at trial.	4
{53} Saiz applies here. Like the defendant in Saiz, Defendants filed an answer to	5
the complaint that sought to place blame on others. Like the plaintiff in Saiz,	6
Plaintiffs were not required to file a pleading in response to Defendants’ answer.	7
And, as in Saiz, here the joint and several liability theory was raised to rebut defenses	8
that sought to place blame on others. Under Saiz, when Defendants chose to assert a	9
causation defense that shifted blame entirely to the Colorado doctors and,	10
alternatively, a comparative fault defense that spread some of the blame to the	11
Colorado doctors if the jury found that Defendants negligently caused injury,	12
Defendants should have anticipated that Plaintiffs would attack those defenses at	13
trial. See id. One such attack was based on successive tort theory, under which	14
Defendants could be held jointly and severally liable for Araceli’s short bowel	15
syndrome even if the jury found that the Colorado doctors were negligent. Because	16
successive tort theory was raised to rebut Defendants’ affirmative defenses, under	17
Saiz Plaintiffs were not required to explicitly raise their theory in a responsive	18
pleading or at any other time before trial.	19

34
{54} We do not perceive legal significance in the factual distinction drawn by	1
Defendants between Saiz and this case. Defendants argue that unlike in Saiz, in this	2
case the joint and several liability theory raised by Plaintiffs in rebuttal was	3
inconsistent with their primary theory of liability. Specifically, Defendants assert	4
that the primary and rebuttal theories raised by the plaintiffs in Saiz were both	5
theories of “direct liability,” but, in contrast, Plaintiffs’ primary theory was that “Dr.	6
Lemon directly caused all their claimed injuries and damages by his direct	7
negligence,” while their rebuttal theory involved both Dr. Lemon and the Colorado	8
doctors playing causal roles with respect to Araceli’s short bowel syndrome. We are	9
unpersuaded. We do not believe that any such factual distinctions are significant	10
given the breadth of the legal rationale in Saiz. There, our Supreme Court reasoned	11
that because an answer to a complaint does not require a plaintiff to file a responsive	12
pleading regarding affirmative defenses, a plaintiff is free to raise at trial “any issue	13
in law or fact” that would rebut an affirmative defense, and that a defendant who	14
seeks to blame others “should anticipate that, for any number of reasons, the defense	15
may be subject to attack at trial.” Saiz, 1992-NMSC-018, ¶ 40 (emphasis added).	16
This broad reasoning encompasses what occurred in this case for the reasons we	17
have explained.	18
{55} Even if we were to agree with Defendants that Saiz requires some degree of	19
consistency between the primary and rebuttal theories for the purpose of preventing	20

35
unfair surprise, we believe that Plaintiffs’ theories are sufficiently consistent to	1
prevent unfair surprise. Under both theories, evidence was presented that Dr.	2
Lemon’s negligence played a causal role with respect to all of Araceli’s injuries,	3
including her short bowel syndrome; Defendants were liable for all of Araceli’s	4
injuries; and the main injury, short bowel syndrome, did not occur until the Colorado	5
doctors removed her small intestine. See id. ¶ 39 (noting that “the thrust” of the	6
plaintiff’s theory was consistently that the defendant against whom several liability	7
had been asserted “was completely responsible” for the injuries). What Plaintiffs	8
sought to add by way of their rebuttal theory was applicable law under which the	9
jury could hold Defendants liable for all of Araceli’s injuries even if the jury found	10
that the Colorado doctors acted negligently. Importantly, under both this rebuttal	11
theory and their primary theory, Plaintiffs premised Defendants’ liability on Dr.	12
Lemon’s negligence, which Plaintiffs pleaded in their complaint and sought to	13
establish throughout the litigation. In this we see no inconsistency that created unfair	14
surprise at trial.7
15
7The dissent asserts that we have created a “per se rule that permits a party to
litigate a case one way, and when that is unsuccessful, try again with another.”
Dissent ¶ 71. We disagree with this characterization of our holding. To the extent
that the dissent’s characterization is intended to describe what occurred in this case,
we do not share the dissent’s perspective. Plaintiffs did not seek to pursue an entirely
new theory of the case after their original theory was unsuccessful. Plaintiffs sought
to add their successive tort theory twice before evidence was submitted to the jury—
at points in time when neither side had been declared unsuccessful. That theory was
raised not to gain a second bite at the apple but instead to rebut Defendants’ defenses.

36
{56} We note that in the district court, the inconsistency complained of by	1
Defendants was based on their misunderstanding, described above, that successive	2
tort liability requires proof that the second tortfeasor was negligent. Defendants	3
argued that because the second tortfeasor must be negligent to hold the first	4
tortfeasor liable, Plaintiffs’ successive tort theory was inconsistent with their theory	5
that the Colorado doctors did not act negligently but instead acted properly and “are	6
heroes who saved” Araceli. But that is not the law, and it therefore does not render	7
Plaintiffs’ rebuttal theory inconsistent with their primary theory.	8
{57} In closing, we highlight that—although, under Saiz, Plaintiffs were not	9
required to raise their rebuttal theory earlier in the proceedings—the Rules of Civil	10
Procedure provide tools that may be used if earlier notice of rebuttal theories would	11
make the proceedings more just or more efficient. See Rule 1-016(A) NMRA. For	12
example, in a case involving complex issues like successive tort liability, upon	13
request of a party or on its own initiative, a district court may enter a pretrial	14
scheduling order that requires the plaintiff to identify—at some point before trial,	15
perhaps before the close of discovery—theories they might raise to rebut affirmative	16
defenses. See Rule 1-016(C)(10) (identifying as a subject for discussion at pretrial	17
conferences “the need for adopting special procedures for managing potentially	18
difficult or protracted actions that may involve complex issues, multiple parties,	19
difficult legal questions or unusual proof problems”). And if the identification of	20

37
potential rebuttal theories requires more time for discovery or trial preparation, the	1
district court may grant extensions of time “[f]or good cause shown.” Rule 1-016(B).	2
III. The Successive Tort Instruction Issue Was Preserved	3
{58} Defendants contend that Plaintiffs failed to preserve the issue of whether the	4
instructions should have included a successive tort instruction. Defendants’ primary	5
argument is that although Plaintiffs requested one of the uniform successive tort	6
instructions, the one they requested, which was based on UJI 13-1802B, does not fit	7
the evidence in this case, and therefore Plaintiffs did not comply with Rule 1-051(I)	8
NMRA (“For the preservation of any error in the charge, objection must be made to	9
any instruction given, . . . or, in case of a failure to instruct on any point of law, a	10
correct instruction must be tendered, before retirement of the jury.”). Relatedly,	11
Defendants point out that Plaintiffs did not propose a verdict form that fit the	12
evidence in the case. Plaintiffs assert that they preserved the issue by requesting that	13
the district court include their successive tort theory in the pretrial order, and again	14
by requesting a successive tort instruction at the jury instruction conference and in a	15
trial brief. We hold that the issue was preserved.	16
{59} Plaintiffs’ repeated requests to pursue their successive tort theory	17
accomplished the three purposes of the preservation requirement imposed by Rule	18
12-321(A) NMRA and Rule 1-051(I), which are (1) to allow the opposition “a fair	19
opportunity to respond” and explain why the court should reject the request, (2) to	20

38
“alert the district court to a claim of error so that any mistake can be corrected at that	1
time,” and (3) to develop a record sufficient for appellate review. Sandoval v. Baker	2
Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d	3
791; see Martinez v. Friede, 2004-NMSC-006, ¶ 26, 135 N.M. 171, 86 P.3d 596	4
(recognizing that Rule 1-051(I) is designed to ensure that the purposes of	5
preservation are served), superseded by rule on other grounds as stated in State v.	6
Moreland, 2008-NMSC-031, ¶ 11, 144 N.M. 192, 185 P.3d 363. First, Plaintiffs’	7
requests afforded Defendants ample opportunity to oppose the requests and explain	8
why the district court should reject those requests. Defendants took that opportunity	9
by responding both orally and in writing. Defendants urged the district court to rule	10
against Plaintiffs on the procedural ground that they raised their successive tort	11
theory too late and on the substantive ground that the evidence did not support	12
successive tort liability at all—and therefore no instruction of any variety on the	13
subject—because there was no evidence of distinct injuries. Second, Plaintiffs’	14
requests alerted the district court that Plaintiffs sought to present their successive tort	15
theory to the jury and that it would be error to prohibit Plaintiffs from doing so, and	16
the district court ruled that Plaintiffs could not do so. Third, Plaintiffs’ requests	17
developed a record that suffices to allow us to review their claim of error.	18
{60} Because the purposes of the preservation requirements were served here, we	19
do not accept Defendants’ preservation argument, which we view as overly-	20

39
technical under the specific circumstances of this case. Defendants do not argue that	1
the uniform successive tort instruction proposed by Plaintiffs incorrectly describes	2
successive tort law. They argue instead that Plaintiffs selected a uniform jury	3
instruction that does not apply to the evidence in this case. The uniform instructions	4
include several on successive tort liability, and the one proposed by Plaintiffs, UJI	5
13-1802B, may be used only if the divisibility of injuries is not a disputed question	6
for the jury to answer—that is, when divisibility is agreed on by the parties or	7
determined by the trial judge as a matter of law. Plaintiffs’ proposed instruction	8
matched their position that the divisibility of injuries was undisputed and even UJI	9
13-1802B would have required the jury to consider multiple injuries: an injury	10
caused by Dr. Lemon and “any harm” subsequently caused by the Colorado doctors’	11
medical care. In any event, the district court never decided the substantive question	12
of whether the divisibility of injuries was disputed because it denied Plaintiffs’	13
request for a successive tort instruction for purely procedural reasons. The court	14
concluded that they raised the theory too late in the litigation and that they therefore	15
could not pursue their successive tort theory at all. This procedural ruling made it	16
unnecessary for the district court to rule on the substantive questions of whether the	17
evidence required the successive tort theory to go to the jury and if so, whether UJI	18
13-1802B or a different instruction on successive tort law was the best fit for the	19
evidence in the case. But rulings on these substantive questions were fairly invoked	20

40
by Plaintiffs’ multiple requests to pursue their successive tort theory and for the jury	1
to be instructed on that theory. See Rule 12-321 (“To preserve an issue for review,	2
it must appear that a ruling or decision by the trial court was fairly invoked.”).	3
Indeed, had the district court ruled in Plaintiffs’ favor on the procedural question, it	4
would have been necessary for the district court to rule on the substantive questions.	5
Plaintiffs invoked rulings on both the procedural and substantive questions, and we	6
will not apply the preservation requirement in a way that bars appellate review of	7
the substantive question merely because the procedural ruling prevented the	8
substantive question from being fully explored. Under these circumstances,	9
declining to review Plaintiffs’ claim of error would elevate form over substance; it	10
would punish Plaintiffs for not requesting alternative sets of successive tort	11
instructions at the outset, even though every purpose of the preservation rule was	12
served by the requests that Plaintiffs did make. See Martinez, 2004-NMSC-006, ¶	13
26 (recognizing that “Rule 1-051(I) is not intended to be punitive” but is instead	14
designed to ensure that the purposes of preservation are served).	15
CONCLUSION	16
{61} We reverse and remand for a new trial, and any other proceedings that might	17
be appropriate, solely on whether Defendants are liable based on Plaintiffs’ theory	18
that Dr. Lemon negligently delayed and negligently performed Araceli’s surgery—	19
the only theory about which the jury did not receive instructions on the applicable	20

41
law. Because the concurrent tort and comparative fault verdict form did not specify	1
whether the act of negligence by Dr. Lemon pertained to either aspect of the	2
negligence claim regarding the surgery, the jury’s negligence finding may not be	3
relied on by Plaintiffs at trial on remand. A jury must answer that question. Because	4
the jury received appropriate instructions about Plaintiffs’ theory that Dr. Lemon	5
failed to accurately describe the surgery he performed, we decline to undo the jury’s	6
verdict in favor of Defendants on that theory.	7
{62} IT IS SO ORDERED.	8
_____________________________	9
ZACHARY A. IVES, Judge	10
I CONCUR:	11
____________________________	12
KATHERINE A. WRAY, Judge	13
J. MILES HANISEE, Judge, dissenting	14

42
HANISEE, Judge (dissenting).	1
{63} I would affirm the jury’s verdict that Defendants Dr. Lemon and various	2
UNM-based entities—despite Dr. Lemon being negligent in some unknown respect,	3
given the absence of a sufficiently specific special verdict form—caused no direct	4
injury to Araceli. In my view, the successive tort rule—a rule that applies exclusively	5
to ensuing injuries by subsequent actors following injuries caused by an initial	6
tortfeasor, and assigns the burden of joint and several liability to the initial	7
tortfeasor—bears no relevance to the predicate question under the successive tort	8
rule, answered by the jury in the negative, of whether negligence on the part of Dr.	9
Lemon caused injury to Araceli. It follows that because no injury to Araceli was a	10
product of Dr. Lemon’s negligence, Defendants are not responsible for any separate	11
and distinct injury caused by any successive actor. See Payne, 2006-NMSC-029, ¶	12
15 (“[O]nly when these elements are found—negligence, causation, and a distinct	13
original injury—may the original tortfeasor be held jointly and severally responsible	14
for the subsequent or enhanced injury as well.” (emphasis added)). As such, even if	15
the majority is correct that an instruction as to the successive tort rule should have	16
been given by the district court, the error fails to warrant or compel rejection of the	17
jury’s verdict, limited though it was to having absolved Dr. Lemon of causing injury	18
to Araceli from negligent acts. I therefore respectfully dissent.	19

43
{64} This is a legally tricky case, as the majority capably explains, see maj. op.	1
¶¶ 27-31, but I ultimately part ways with my colleagues in two central respects. First,	2
to reiterate, nothing about the successive tort rule affects the condition precedent	3
necessary to successive tort liability resolved by the jury (as the same question would	4
have been asked of the jury had a successive tort instruction been given); namely,	5
that Dr. Lemon was not “a cause of [Plaintiffs’] injuries and damages.” In deciding	6
differently, the majority holds the successive tort rule to apply and concludes a jury	7
instruction must have been given as to its application on two of Plaintiffs’ four	8
claims of negligence by Dr. Lemon, discussed by the majority as two theories	9
(effectively surgical and nonsurgical) of negligence. See maj. op. ¶¶ 3, 11. It is on	10
this basis that the majority reverses the jury’s verdict, stating the need for a properly	11
instructed jury to retry fact questions related to ensuing injury caused by	12
nondefendants under the successive tort rule, as well as a do-over as to Plaintiffs’	13
theory of negligence regarding injuries arising from Dr. Lemon’s own surgical	14
actions, see maj. op. ¶ 55—the latter task being the very theory the first jury fully	15
considered and rejected.	16
{65} In Payne, a case that revolved around successive tort liability from the outset,	17
our Supreme Court identified the following error in the successive tort liability jury	18
instruction: the jury “was never asked the critical question about causation of a	19
separate, original injury.” 2006-NMSC-029, ¶ 33. In the instant case, however, the	20

44
jury was properly instructed on the core element of causation of a separate, original	1
injury as to Defendants, and found there to be none. Stated succinctly, without	2
causation of an original injury, there can be no successive tort liability. See id. ¶ 15;	3
Lujan, 1995-NMSC-057, ¶ 16 (stating that joint and several liability applies to an	4
enhanced injury “[i]n cases involving successive tortfeasors whose separate causal	5
contributions to the plaintiff’s harm can be measured” (emphasis added)); Turpie v.	6
Sw. Cardiology Assocs., P.A., 1998-NMCA-042, ¶ 17, 124 N.M. 787, 955 P.2d 716	7
(concluding that a doctor found not to have caused the death of a patient cannot then	8
be held liable for other claimed damages stemming from the patient’s death and that	9
a jury finding of no causation “controls all other aspects of the case”).	10
{66} Thus, that the jury in this case did not receive a successive tort liability	11
instruction is harmless error, if error at all, and is thus of no moment in light of the	12
jury’s ultimate decision that Dr. Lemon’s negligence did not cause any injury to	13
Araceli. See ERICA, Inc. v. N.M. Regul. & Licensing Dep’t, 2008-NMCA-065, ¶ 24,	14
144 N.M. 132, 184 P.3d 444 (“On appeal, error will not be corrected if it will not	15
change the result.” (internal quotation marks and citation omitted)); see also Traster	16
v. Steinreich, 523 N.E.2d 861, 863 (Ohio Ct. App. 1987) (holding there to be “no	17
harm in the failure to give the instruction on the successive tortfeasor theory” when	18
the jury found the defendants not negligent and therefore unable to have caused	19

45
injury8); Pena v. Northeast Ohio Emergency Affiliates, Inc., 670 N.E.2d 268, 281	1
(Ohio Ct. App. 1995) (“In order for the doctrine to apply, there must be an originally	2
negligent party whose acts necessitated the negligent acts or omissions of others.”).	3
{67} To be clear, I agree with the majority that the successive tort rule could apply	4
in this case to injuries caused by corrective surgical procedures made necessary by	5
virtue of Dr. Lemon’s negligence during a surgical procedure that he performed and	6
that caused injury, but cannot apply to any deficit in Dr. Lemon’s postoperative notes	7
or later communications with Araceli’s family. See maj. op. pp. ¶ 33. This holding	8
makes sense given the successive tort rule is a “positive rule of decisional law”	9
available in specific circumstances wherein joint, and not merely several, liability	10
exists for the original tortfeasor for enhanced injuries arising from acts of a second,	11
unrelated actor. See Lewis ex. rel. Lewis v. Samson, 2001-NMSC-035, ¶ 33, 131	12
N.M. 317, 35 P.3d 972 (internal quotation marks and citation omitted); see also	13
Payne, 2006-NMSC-029, ¶ 13 (“[T]he successive tortfeasor doctrine imposes joint	14
and several liability on the original tortfeasor for the full extent of both injuries, those	15
caused by both the original tortfeasor and the successive tortfeasor.”). It is correct as	16
8I acknowledge that in Traster, the jury found the defendant not negligent,
unlike in this case. See 523 N.E.2d at 863. However, a cause of action for negligence
further includes elemental requirements of causation and injury, neither of which the
jury found here. Thus, in my view, Traster’s holding that the trial court’s not having
given a successive tort instruction was not reversible error is instructive given the
verdict here rejecting the predicate claim of negligence.

46
a matter of law that if that negligence were rooted in surgical failures by Dr. Lemon,	1
Defendants could be jointly responsible for damages occasioned by necessary	2
corrective surgery resulting in “separate and causally-distinct [second] injuries” to	3
Araceli. See Payne, 2006-NMSC-029, ¶ 14 (emphasis omitted). Yet, instead the jury	4
sided with Defendants as to the absence of any initial injury caused by Defendants.	5
But ultimately, the majority accepts only half the jury’s verdict: the determination	6
that Dr. Lemon was negligent regarding some aspect (surgical or nonsurgical, we	7
don’t know which) of medical care Araceli received from Defendants. The other	8
half—that such caused no injury—is effectively erased by today’s ruling.	9
{68} This brings me to my second point of disagreement with the majority: the	10
record is needlessly unclear regarding whether Defendants were found liable for	11
negligence for which the successive tort rule applies (surgical negligence by Dr.	12
Lemon) or for negligence that cannot justify application of the successive tort rule	13
(nonsurgical negligence by Dr. Lemon). See maj. op. ¶ 46. Assuming without	14
agreeing that despite the jury’s finding that Dr. Lemon caused no injury, the nature	15
of the negligence matters, in my view the general verdict rule otherwise applies to	16
the verdict at hand. See Goodman, 2020-NMCA-019, ¶ 16 (“[U]nder the general	17
verdict rule, a general verdict may be affirmed under any theory supported by	18
evidence unless an erroneous jury instruction was given.” (internal quotation marks	19

47
and citation omitted)); see also Bustos, 2010-NMCA-090, ¶¶ 48-49 (analyzing jury	1
instructions for harmless error in the general verdict rule context).	2
{69} Here, the general verdict rendered may and should be affirmed because two	3
theories posited by Plaintiffs were that Dr. Lemon erred in identifying the exact	4
surgical procedure he performed in postoperative notes or otherwise erred in his	5
communications after surgery, i.e., nonsurgical negligence. Importantly, because the	6
failure to give a successive tort instruction in either nonsurgical circumstance is no	7
failure at all, the entire basis set forth by the majority as reversible error is in fact	8
only possible error at best. But because Plaintiffs—whose burden it was to prove the	9
allegations set forth in their complaint at trial—failed to request a special verdict	10
form that would clarify exactly what Dr. Lemon did negligently from the four types	11
of negligence they alleged, two of which are deficient from the standpoint of	12
successive tort, we are left with one simple question: Does one theory supported by	13
evidence and properly instructed support the general verdict, and therefore defeat a	14
determination that the failure to give the successive tort rule instruction as to another	15
theory warrants reversal? The answer to that question under the general verdict rule	16
is yes. See Goodman, 2020-NMCA-019, ¶ 16; Bustos, 2010-NMCA-090, ¶ 48. Here,	17
two of the four theories pursued by Plaintiffs were unsuitable from the standpoint of	18
the successive tort rule, and under the general verdict rule we assume the jury to	19
have found only nonsurgical negligence on the part of Dr. Lemon. As such, the case	20

48
ends exactly where it did, in district court following issuance of a defense verdict	1
that should be affirmed on the trial record before this Court. See also Coates v. Wal-	2
Mart Stores, Inc., 1999-NMSC-013, ¶ 52, 127 N.M. 47, 976 P.2d 999 (holding the	3
appellant not to have “borne its burden of proving error”).	4
{70} Lastly, the question of whether Plaintiffs timely raised, or were even required	5
to timely raise, applicability of the successive tort rule need not be resolved. But to	6
reverse and remand for new trial proceedings, as the majority directs, it must be. I	7
express some concern regarding the analysis employed in this regard by the majority.	8
Saiz, relied on by the majority to allow Plaintiffs to rebut Defendants’ theory of the	9
case by use of the successive tort rule, applies in a different context: concurrent	10
liability in the effectuation of an inherently dangerous activity. See maj. op. ¶¶ 50-	11
55; Saiz, 1992-NMSC-018, ¶¶ 34-35. Typically, concurrent tortfeasors either have	12
some relationship to one another in a given circumstance that results in injury, or	13
operate alongside one another in some action for which joint liability is permissible,	14
such as the inherently dangerous activity of constructing and maintaining the	15
adjacent fencing and lighting system in Saiz. 1992-NMSC-018, ¶¶ 9-10. True, the	16
rationale that underpins Saiz—that a plaintiff need not declare their intention to	17
respond to a defendant’s theory of defense by filing a responsive pleading or	18
adjusting their own case in chief accordingly, id. ¶¶ 39-40—might well apply in the	19
successive tort construct, as explained by the majority. But it seems this legally	20

49
differing circumstance is why Saiz was careful to note its application to “the facts of	1
this case.” Id. ¶ 39.	2
{71} Here, unlike in Saiz, where the allegedly negligent parties participated in a	3
single injury rather than two separate and distinct injuries, Plaintiffs chose not to sue	4
subsequent care providers, and Defendants opted not to seek joinder of the parties	5
Defendants believed were responsible for Araceli’s injuries. See maj. op. ¶ 11.	6
Indeed, the proceedings below—beginning with Plaintiffs’ complaint, continuing	7
through the completed process of discovery, and ultimately including the trial itself	8
(limited in scope by the denial of Plaintiffs’ postdiscovery effort to introduce a	9
theory of successive tort liability by which Defendants could be liable for ensuing	10
injuries caused by others)—were characterized by straightforward but competing	11
perspectives: Plaintiffs presented evidence and argued that Araceli’s injuries were	12
caused by Defendants; Defendants likewise maintained Araceli’s injuries were	13
caused by ensuing actors. Indeed, the jury was told “[P]laintiffs deny what	14
[D]efendants say about the negligence of [nondefendants].” All told, these were	15
strategic decisions that persisted beyond discovery through closing arguments. To	16
extend Saiz to successive torts as the majority does herein, while not illogical based	17
on the rationale expressed by Saiz, is less a matter of binding precedent, as the	18
majority concludes, and more a question of whether the justification that underpins	19
Saiz also applies to the successive tort rule. See maj. op. ¶ 50. I suggest if indeed it	20

50
does, it should be on a case-by-case basis and not a per se rule that permits a party	1
to litigate a case one way, and when that is unsuccessful, try again with another.	2
{72} For the reasons stated above, I respectfully dissent.	3
_____________________________	4
J. MILES HANISEE, Judge	5