July 16, 2019- Rubiane Valdez-Barela v. Corrections Corporation of America, No. A-1-CA-37384

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	RUBIANE VALDEZ-BARELA,
3 	as PERSONAL REPRESENTATIVE of
4 the ESTATE OF JOSEPH BARELA,
5 	Plaintiff-Appellant,
6 	v. 	No. A-1-CA-37384
7 	CORRECTIONS CORPORATION OF
8 AMERICA and CORIZON HEALTH,
9 	INC.,
10 	Defendants-Appellees.
11 	APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
12 Beatrice J. Brickhouse, District Judge
13 	Law Office of Augustine M. Rodriguez, L.L.C.
14 Augustine M. Rodriguez
15 	Albuquerque , NM
16 	for Appellant
17 	Struck Love Bojanowski & Acedo , PLC
18 	Daniel P. Struck
19 Jacob B. Lee
20 	Chandler , AZ
21 	Kennedy , Moulton & Wells, P.C.
22 	Deborah D. Wells
23 	Debra J. Moulton
24 	Albuquerque , NM
25 	for Appellees
Court of Appeals of New Mexico
Filed 7/16/2019 1:19 PM

1 	MEMORANDUM OPINION
2 HANISEE, Judge.
3 {I} 	PlaintiffRubianne Valdez-Barela, as personal representative for the Estate of
4 Joseph Barela, appeals from the district court's order granting summary judgment in
5 favor of Defendants. We issued a notice of proposed summary disposition proposing
6 to affirm, and Plaintiff has responded with a timely memorandum in opposition,
7 which we have duly considered. We remain unpersuaded that our initial proposed
8 disposition was incorrect, and we therefore affirm the district court.
9 	{2} 	In her memorandum in opposition, Plaintiff continues to argue that the district
10 court erred in granting summary judgment. We review the district court's order
11 	granting summary judgment de novo. Cain v. Champion Window Co. ofAlbuquerque,
12 LLC, 2007-NMCA-085, ~ 6, 142 N.M. 209, 164 P.3d 90. Summary judgment is
13 	appropriate where "there is no genuine issue as to any material fact and . . . the
14 	moving party is entitled to a judgment as a matter of law." Rule l-056(C) NMRA.
15 	"On appeal from the grant of summary judgment, we ordinarily review the whole
16 record in the light most favorable to the party opposing summary judgment to
17 determine if there is any evidence that places a genuine issue of material fact in
18 	dispute." City ofAlbuquerque v. BPLW Architects & Eng 'rs, Inc., 2009-NMCA-081,
2

1 ,r 7, 146 N.M. 717, 213 P.3d 1146. "However, if no material issues of fact are in
2 	dispute and an appeal presents only a question oflaw, we apply de novo review and
3 	are not required to view the appeal in the light most favorable to the party opposing
4 	summary judgment." Id.
5 	{3} 	To briefly reiterate the relevant background, Mr. Barela, a pretrial detainee,
6 	was booked into the Torrance County Detention Center (TCDC) on September 9,
7 	2013 . 	[DS 	2-3; 	RP 	453] 	On November 26, 2013 , Mr. 	Barela was 	placed 	in
8 	segregation for refusing to submit to a urinalysis screening. [RP 3; RP 453] On the
9 	morning of December 2, 2013, Mr. Barela was found hanging from a bed sheet in his
10 	cell. [RP 3; RP 454] An autopsy determined that the cause of death was hanging, that
11 	Mr. Barela had a quantity of heroin concealed in his body, and that he had a number
12 	of drugs in his system at the time of his death. [RP 4, 455]
13 	{4} 	Plaintiff filed a complaint for wrongful death alleging that Defendants were
14 negligent in failing to provide proper medical and psychiatric care and in failing to
15 	prevent drugs from entering the TCDC. [RP 1-12] Specifically, Plaintiff alleged that
16 Defendants breached their duty "to comply with standards, policies and procedures
17 regarding the treatment and care of a person with Mr. Barela's observed irrational
18 	beha v ior and failure to screen for suicidal ideation and need for acute psychiatric care
19 	and suicide prevention treatment and for failure to detect and intercept drugs going
3

1 into the prison facility and in the possession of inmates." [RP 4] Plaintiff further
2 alleged that Mr. Barela's death was a direct and proximate result of Defendants'
3 negligence. [RP 2-4, 11]
4 	{5} 	Defendants filed a motion for summary judgment in which they argued that
5 Plaintiff could not establish the essential elements of duty and breach on her
6 negligence claims because she did not have expert witnesses to establish that
7 Defendants failed to meet the required standard of care in failing to diagnose Mr.
8 Barela as suicidal and take proper precautions or that they failed to meet the standard
9 	of care for preventing drug possession and use by inmates. [RP 458-459] Defendants
10 	also argued that Plaintiff did not have an expert witness to establish that Mr . Barela' s
11 	death was in any way caused by the drugs found in his system. [RP 459]
12 	{6} 	Before Plaintiff filed her response to the motion for summary judgment, the
13 	district court entered an order ruling that Plaintiff would not be allowed to present
14 	expert witnesses as a sanction for Plaintiff's failure to timely and adequately disclose
15 	any experts. [RP 540] See Allredv. N.M Dep 't ofTransp., 2017-NMCA-019, ,-r 47,
16 	388 P.3d 998 (recognizing that the failure to make the required disclosures on expert
17 	witnesses is sufficient grounds to exclude expert witness testimony). Plaintiff then
18 	filed her response to the motion for summary judgment in which she argued that
19 	issues of material fact existed, but did not respond to Defendants' argument that she
4

1 was required to present expert witness testimony to prevail on her claims. [RP 625-
2 	644] On March 14, 2018, after Defendants filed their reply, the district court entered
3 	its order granting summary judgment in favor of Defendants. [RP 873] This appeal
4 	follows.
5 {7} 	In our notice of proposed summary disposition, we proposed to hold that the
6 applicable standard of care for screening and monitoring inmates for mental health
7 	issues as well as the standard of care relating to policies and procedures to prevent
8 drug use by inmates is not within the knowledge of the lay juror and therefore must
9 	be established by the testimony of a qualified expert witness. Additionally, we
10 proposed to hold that whether drugs in any way contributed to causing Mr. Barela's
11 	death was also a subject requiring expert witness testimony. We therefore proposed
12 to conclude that, as the district court had stricken Plaintiff's experts, Plaintiff could
13 	not 	establish 	her 	claims, 	and 	summary judgment 	was 	properly 	granted. 	See
14 Firstenberg v. Monribot, 2015-NMCA-062, , 30,350 P .3d 1205 ( concluding that the
15 	district court properly granted summary judgment where the plaintiff's proposed
16 expert witnesses were excluded by the district court and the plaintiff therefore could
17 not the prove the necessary element of causation); Buke, LLC v. Cross Country Auto
18 	Sales, LLC, 2014-NMCA-078,, 58,331 P.3d 942 (affirming the district court's grant
19 	of summary judgment on an accountant malpractice claim because expert testimony
5

1 was required to establish the applicable standards of conduct and the plaintiff
2 presented none).
3 	{8} 	In her memorandum in opposition, Plaintiff first argues that expert testimony
4 was not required to establish Defendant s' 	negligence in placing Mr. Barela in
5 segregation. Plaintiff argues that, due to the known risks associated with placing an
6 inmate in segregation, Defendants imposed a duty on themselves to complete a
7 physical and mental health evaluation prior to placement of inmates in segregation.
8 In this case, Plaintiff alleged that Defendants failed to complete and memorialize the
9 mental health evaluation before it placed Mr. Barela in segregation, as evidenced by
10 	an uncompleted pre-segregation evaluation form. Plaintiff argues that Defendants'
11 	failure to comply with its own policies regarding pre-segregation mental health
12 	screening constitutes negligence per se, and a jury did not need expert testimony to
13 	determine whether Defendants completed the pre-segregation evaluation or whether
14 	the failure to complete the pre-segregation evaluation was a proximate cause or cause
15 	in fact of Mr. Barela's suicide. [MIO 4]
16 	{9} 	We disagree. To the extent that Plaintiffs claim on this issue is premised on
17 	Defendants' failure to follow its policy regarding segregation of inmates, we note that
18 	Plaintiff has cited to no authority to suggest that the doctrine of negligence per se is
19 applicable to an entity's failure to comply with internal rules or policies. See Cobb
6

1 v. Gammon, 2017-NMCA-022, , 43 , 389 P.3d 1058 ("Negligence per se exists only
2 where a statutory or regulatory provision imposes an absolute duty to comply with a
3 specific requirement." ); Thompson v. Potter, 2012-NMCA-014, , 32, 268 P.3d 57
4 (setting out the elements of negligence per se); see also McNeil! v. Rice Eng 'g &
5 Operating, Inc., 2010-NMSC-015 , , 	11, 148 N.M. 16, 229 P.3d 489 (stating that
6 where parties fail to cite authority for their legal propositions, appellate courts "will
7 presume that no such authority exists" ).
8 	{10} 	Further, we disagree that the standard of care in this case and whether
9 Defendants' conduct breached that standard could be established solely by reference
10 	to the pre-segregation evaluation. Defendants attached documents to their motion for
11 	summary judgment indicating that, after Mr. Barela was placed in segregation on
12 November 26, medical personnel examined Mr. Barela on both November 29, and
13 	December 1. [RP 469, 4 71] Whether Defendants' conduct was negligent would have
14 to be considered in the context of all the events and circumstances related to Mr.
15 	Barela' s confinement to segregation including any other evaluations or medical
16 	treatment that occurred, not just the pre-segregation evaluation. See Grassie v.
17 Roswell Hosp. 	Corp. , 2011-NMCA-024,, 77 , 	150 N.M. 283, 258 P.3d 	1075
18 	(rejecting the plaintiffs argument that an agreement between the defendant hospital
19 	and a third-party to provide medical services set the standard of care on a hospital ' s
7

1 negligence in allowing a doctor to work in the emergency room such that the
2 hospital's failure to follow the terms of the agreement was the only evidence
3 necessary to show negligence and holding that the question whether the failure to
4 follow the agreement was negligent must be viewed in the context of the entire
5 screening process actually undertaken).
6 	{11} 	Fundamentally, Plaintiff's claim involved the standard of care for monitoring
7 inmates in segregation in a correctional facility for risk of suicide and the need for
8 psychiatric care, and the adequacy of suicide prevention measures, and whether
9 Defendants' conduct, in its entirety, comported with that standard of care. We remain
10 unpersuaded that such issues are within the knowledge or experience of an average
11 	lay juror. We therefore remain of the opinion that expert witness testimony was
12 	required to establish the standard of care 	in these circumstances and whether
13 	Defendants' conduct breached that standard. See e.g. , Villalobos v. Dona Ana Bd. of
14 	Cty. Comm 'rs, 2014-NMCA-044, ,r,r 1, 5-15, 322 P.3d 439 (determining in a case
15 	involving the assault of an inmate in an architectural blind spot in the facility that the
16 	standard of care for the monitoring of inmates, jail design, video surveillance, or any
17 other factors that underlie such a standard must be established by expert testimony).
18 	{12} 	Plaintiff next argues that expert witness testimony is irrelevant to the adequacy
19 	of policies and procedures employed to prevent drug use in a correctional facility
8

1 where corrections officers bring drugs into the facility and provide them to the
2 inmates. [MIO 5-6] However, even assuming Plaintiff was not required to present
3 expert witness 	testimony 	to 	show Defendants' 	policies 	with 	respect to 	drug
4 prevention 	were 	not 	in 	conformity 	with 	the 	standard 	of 	care 	under 	these
5 circumstances, the question whether drug use was a contributing factor to Mr.
6 Barela's suicide, and to what extent, is a subject requiring expert witness testimony,
7 as it would not be within the knowledge of a lay juror to determine medical causation.
8 See Cano v. Smith 's Food King, 1989-NMCA-080, 15, 109 N.M. 50, 781 P.2d 322
9 (holding that medical causation ordinarily must be supported by expert medical
10 testimony).
11 	{13} 	Finally, Plaintiff argues that expert witnesses from the Office of the Medical
12 	Investigator (OMI) are available to testify as to the cause of death, specifically, Dr.
13 	Ross Zumwalt, Deputy Field Investigator Wayne Granger, and Robert A. Middle berg.
14 	[MIO 6-7] Plaintiff argues that these experts were retained by the OMI specifically
15 	to investigate causes of death and could testify on remand. [MIO 6] However, as
16 explained in the notice of proposed summary disposition, the district court entered an
17 	order prohibiting Plaintiff from calling expert witnesses at trial as a sanction, and
18 	Plaintiff has not challenged this ruling on appeal. Accordingly, we must reject this
19 argument. See Blauwkamp v. University ofN.M Hosp., 1992-NMCA-048, 1115-17,
9

1 114 N.M. 	228, 	836 P.2d 	1249 (recognizing that the defendants 	in a medical
2 malpractice action could establish a prima facie case for summary judgment merely
3 by pointing out that the plaintiff lacked an expert witness and were not required to
4 present an affidavit of their own expert).
5 	CONCLUSION
6 	{14} 	For these reasons, we affirm the district court's order granting summa
7 judgment in favor of Defendants.
8 {15}
9
10
IT IS SO ORDERED.
11 	WE CONCUR:
J. MILES HANISEE Judge
10