Bradley v. Lovelace

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 SHARLA BRADLEY, 8 Plaintiff-Appellant, 9 v. NO. 27,936

10 LOVELACE SANDIA HEALTH SYSTEM, 11 a foreign corporation doing business in 12 New Mexico,

13 Defendant-Appellee.

14 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 15 Ted Baca, District Judge

16 Gilpin & Keefe, P.C. 17 Donald G. Gilpin 18 Albuquerque, NM

19 for Appellant

20 Rodey, Dickason, Sloan, Akin & Robb, P.A. 21 R. Nelson Franse 22 Albuquerque, NM

23 Epstein Becker & Green, P.C. 24 Patrick F. Clark 25 Amelia M. Willis 26 Atlanta, GA

27 for Appellee

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1 MEMORANDUM OPINION 2 KENNEDY, Judge. 3 During 2004, Appellant Sharla Bradley worked as a billing clerk in the central 4 billing office of Appellee Lovelace Sandia Health System. In September of that year, 5 she experienced a bout of severe depression that culminated in a failed overdose 6 attempt. Bradley sought treatment at the Lovelace emergency room, was discharged 7 the same evening, and was ordered by her doctor to take some time off. While 8 recuperating, she determined that her Lovelace coworkers had accessed her medical 9 records in the computer billing system and knew of her overdose. Embarrassed, she 10 did not return to work and chose instead to file suit against Lovelace for prima facie 11 tort, intentional infliction of emotional distress, and invasion of privacy. The district 12 court dismissed her claim for prima facie tort prior to trial and later dismissed her 13 other claims pursuant to a judgment as a matter of law. The court also refused to 14 allow her amended complaint for punitive damages and excluded hearsay testimony 15 at trial. Bradley appeals. For the reasons set out below, we affirm the district court 16 on all issues. 17 BACKGROUND

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1 Bradley began working at Lovelace as a temporary employee in July 2003. She 2 then transitioned to a permanent billing clerk position in the central billing office in 3 January 2004. On September 6, 2004, she overdosed and was admitted to Lovelace’s 4 emergency room. Her supervisor permitted her to convalesce at home, and during that 5 time, Bradley spoke with coworker and friend, Eleanor Madrid, on the telephone. 6 Madrid asked Bradley how she was feeling, and when Bradley indicated that she felt 7 fine, Madrid asked, “Are you sure? . . . Because I heard that you were in the 8 emergency room because you had taken a lot of pills.” Bradley then asked Madrid 9 how she knew about the overdose. Madrid replied, “You know how people whisper 10 around here. . . . You know how the girls are.” Bradley understood “the girls” to refer 11 to her coworkers, Dolly Aragon and Grace Baca. Aragon had a reputation for 12 discussing the personal lives of other Lovelace employees, and based on a later 13 conversation with Madrid, Bradley began to suspect that Aragon and Baca had learned 14 of her overdose by improperly accessing her medical information in the Lovelace 15 computerized billing system. 16 That her coworkers knew of her overdose embarrassed Bradley, and she quit 17 her job as a result. She reported the incident to Becky Falance, Lovelace’s Human 18 Resources Director, and to Ann Greenberg, Lovelace’s Director of Privacy and 19 HIPAA Compliance. Falance and Greenberg then began an internal investigation.

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1 They first identified each employee who had information relevant to Bradley’s 2 complaint: Madrid, Dennis Lovato, Selena Romero, Aragon, and Baca. They then 3 interviewed each person, and at the conclusion of their investigation, Falance and 4 Greenberg published a report. In the report, they stated that the investigation was 5 unable to establish whether Bradley’s patient records were improperly accessed in 6 September 2004. Despite this fact, they found that Bradley had a habit of discussing 7 her personal health condition with coworkers and that, on other occasions, Bradley 8 and her coworkers together accessed her records in order to confirm that she was 9 correctly billed for medical services. Employee Baca admitted to once accessing 10 Bradley’s file in order to obtain Bradley’s mobile phone number. The report 11 concluded that the accesses prior to September 2004 constituted violations of 12 Lovelace policies and practice and recommended: (1) disciplinary measures against 13 all offending employees, and (2) privacy refresher training for all employees in the 14 central billing office 15 All employees who either accessed Bradley’s record or knew of an access and 16 did not report it were disciplined by Lovelace. Baca was counseled in writing for 17 accessing Bradley’s phone number, and Lovato, Romero, Madrid, and Aragon were 18 counseled orally for not reporting the violation. Lovelace conducted these 19 counselings with the aim of making “sure [the employees] understood the seriousness

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1 of the allegation and what their responsibilities were as far as HIPAA.” In an October 2 2004 letter, Lovelace formally notified Bradley of the investigation’s results and 3 generally described the disciplinary and remedial measures it took as a consequence. 4 Bradley filed suit against Lovelace on March 23, 2005. Her complaint 5 demanded compensatory damages against Lovelace for prima facie tort, intentional 6 infliction of emotional distress, and invasion of privacy. The parties engaged in 7 discovery, and on June 2, 2006, Lovelace filed a motion for summary judgment, 8 which was granted in part when the district court dismissed Bradley’s claim for prima 9 facie tort. 10 In her complaint, Bradley originally sought only compensatory damages. She 11 asked to be compensated for past and future “earnings she would have received” and 12 “mental anguish and humiliation.” After the parties completed discovery, Bradley 13 filed a pre-trial motion in limine dated December 1, 2006. In it, Bradley made clear 14 that she was seeking “lost wages, lost benefits, emotional distress damages and 15 punitive damages.” Lovelace responded by filing a motion to dismiss Bradley’s 16 punitive damages claim as untimely. The court granted Lovelace’s motion. 17 On June 18 and 19, 2007, the district court held a jury trial. During Bradley’s 18 case in chief, she sought to admit the testimony of Lovato. He would have testified 19 that Romero told Aragon about an improper access of Bradley’s medical records in

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1 September 2004. The district court sustained Lovelace’s objection to the testimony 2 on the basis that it was hearsay within hearsay. At the close of Bradley’s case in chief, 3 Lovelace made a motion for a judgment as a matter of law on the issue of intentional 4 infliction of emotional distress, which the district court granted. Later, at the close of 5 its own case in chief, Lovelace moved for another judgment as a matter of law on the 6 issue of whether it could be held vicariously liable for the intentional torts of its 7 employees and on Bradley’s claim for invasion of privacy. The district court granted 8 Lovelace’s motion on the issue of vicarious liability, and as a result, likewise granted 9 Lovelace a judgment as a matter of law on the issue of invasion of privacy. 10 Bradley appeals and argues that the district court erred in a number of ways. 11 She contends that it improperly granted Lovelace’s motion for summary judgment on 12 the issue of her prima facie tort claim. Likewise, she claims that she should have been 13 given leave to amend her complaint to include a claim for punitive damages. She 14 argues that the district court improperly excluded the testimony of Lovato and that it 15 improperly dismissed her claim for intentional infliction of emotional distress. 16 Finally, Bradley urges us to reverse the district court’s finding that Lovelace’s 17 employees were not acting within the course and scope of their employment, and she 18 argues that the court should not have dismissed her claim for invasion of privacy. We 19 analyze each argument below and affirm the district court.

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1 DISCUSSION 2 1. Prima Facie Tort 3 Bradley first asserts that the district court improperly granted summary 4 judgment to Lovelace on her claim of prima facie tort. We review a district court’s 5 grant of summary judgment de novo. Self v. United Parcel Serv., Inc., 6 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Summary judgment constitutes 7 an appropriate remedy “where there are no genuine issues of material fact and the 8 movant is entitled to judgment as a matter of law.” Id. When reviewing summary 9 judgments, we entertain all reasonable inferences and view “the facts in a light most 10 favorable to the party opposing the motion.” Gushwa v. Hunt, 2008-NMSC-064, ¶ 9, 11 145 N.M. 286, 197 P.3d 1 (internal quotation marks and citation omitted). 12 The doctrine of prima facie tort allows tort claims to proceed against defendants 13 whose tortious acts do not fit neatly within common law categories. Bogle v. Summit 14 Inv. Co., 2005-NMCA-024, ¶ 22, 137 N.M. 80, 107 P.3d 520. As our Supreme Court 15 has held, prima facie tort “provides a remedy for plaintiffs who have been harmed by 16 a defendant’s intentional and malicious acts,” even where those acts fall outside the 17 elements of traditional common law torts. Schmitz v. Smentowski, 109 N.M. 386, 394, 18 785 P.2d 726, 734 (1990).

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1 Prima facie tort may be pled in the alternative, but if the district court 2 determines that the facts of the case would be more properly submitted under an 3 established tort, it must dismiss the claim. Id. at 396, 785 P.2d at 736. Prima facie 4 tort must “not be used to evade stringent requirements of other established doctrines 5 of law.” Bogle, 2005-NMCA-024, ¶ 22 (internal quotation marks and citation 6 omitted); Healthsource, Inc. v. X-Ray Assoc. of N.M., 2005-NMCA-097, ¶ 35, 138 7 N.M. 70, 116 P.3d 861; Stock v. Grantham, 1998-NMCA-081, ¶ 38, 125 N.M. 564, 8 964 P.2d 125. A plaintiff’s prima facie tort claim must be dismissed if it is 9 “duplicative of . . . other claims” or used to evade “proof of essential, and appropriate, 10 elements” of such claims. Stock, 1998-NMCA-081, ¶ 39. A prima facie tort will “not 11 lie when the pleaded factual basis is within the scope of an established tort.” 12 Healthsource, Inc., 2005-NMCA-097, ¶ 35. 13 Assuming the claim adequately crosses this threshold, plaintiffs who assert 14 prima facie tort must prove the following elements: (1) the defendant committed an 15 intentional, lawful act; (2) the act was intended to injure the plaintiff; (3) the act did, 16 in fact, injure the plaintiff; and (4) the defendant committed the act without sufficient 17 justification. Bogle, 2005-NMCA-024, ¶ 22. In addition to these elements, courts 18 considering prima facie tort must also balance the claimed tortious conduct “against 19 its justification and the severity of the injury, weighing: (1) the injury; (2) the

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1 culpable character of the conduct; and (3) whether the conduct is unjustifiable under 2 the circumstances.” Schmitz, 109 N.M. at 394, 785 P.2d at 734. The alleged tortious 3 conduct must also be wrongful or generally improper and unjustifiable in nature. Id. 4 at 394-95, 785 P.2d at 734-35. In addition to balancing these factors, New Mexico 5 courts must also consider “(1) the nature and seriousness of the harm to the injured 6 party, (2) the nature and significance of the interests promoted by the actor’s conduct, 7 (3) the character of the means used by the actor and (4) the actor’s motive.” Id. at 8 395, 785 P.2d at 735 (internal quotation marks and citation omitted). 9 Our examination of the record reveals no separate factual basis for Bradley’s 10 claim of prima facie tort. Indeed, it would appear that Bradley’s prima facie tort claim 11 relies upon the exact same factual basis as her claims for intentional infliction of 12 emotional distress and invasion of privacy. In establishing all three, she cites the 13 actions of her coworkers, the alleged inaction of Lovelace, the doctrine of respondeat 14 superior, and the harm these events caused to her. Her response to Lovelace’s motion 15 for summary judgment is illustrative. She stated, “Therefore, if the [c]ourt determines 16 that the actions of [Lovelace] are not in violation of New Mexico law for [i]nvasion 17 of [p]rivacy and [i]ntentional [i]nfliction of [e]motional [d]istress, then Plaintiff would 18 have the ability to pursue her [p]rima [f]acie [t]ort [c]laim.”

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1 Our case law firmly establishes the impropriety of such pleading. In Stock, the 2 plaintiff asserted a variety of claims, including both prima facie tort and intentional 3 infliction of emotional distress. 1998-NMCA-081, ¶ 36. As in the present case, both 4 claims were based upon identical facts, so that the plaintiff was using prima facie tort, 5 essentially, as a fall-back claim. Id. ¶ 38. We stated that we will “not recognize a 6 claim of intentional infliction of emotional distress in the absence of the outrageous 7 conduct required for that tort, even if the plaintiff relabeled the cause of action as 8 prima facie tort.” Id. (internal quotation marks omitted). “The only function of the 9 claim of prima facie tort in [her] complaint is to escape possible restrictions imposed 10 on the tort[] of intentional infliction of emotional distress.” Id. 11 Bradley argues that she pleaded her claim for prima facie tort in the alternative, 12 and as such, the district court improperly dismissed it. The issue should have gone to 13 the jury, she contends, because her coworkers’ conduct fits within the elements of 14 prima facie tort. We hold that the district court correctly granted Lovelace’s motion 15 for summary judgment on this issue. Foremost, based on the facts before the district 16 court at the time it considered Lovelace’s motion, neither the conduct of Lovelace nor 17 the conduct of Bradley’s coworkers fit the elements of prima facie tort. Where 18 Bradley asserted that Lovelace improperly maintained its computer system or failed 19 to provide HIPPA training to its employees, she fails to establish Defendant’s intent

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1 to injure her. See Bogle, 2005-NMCA-024, ¶ 22. Where, on the other hand, she 2 asserted her coworkers’ improper access of her records, she fails to establish a lawful 3 act. Id. In either case, Bradley fails to establish at least one element of prima facie 4 tort, and dismissal was required by the district court as a matter of law. See Silverman 5 v. Progressive Broad., Inc., 1998-NMCA-107, ¶ 36, 125 N.M. 500, 964 P.2d 61 6 (where we held that a district court properly dismissed the plaintiff’s prima facie tort 7 claim at the summary judgment stage because the facts in the record failed to establish 8 one element). 9 2. Punitive Damages 10 Bradley next argues that the district court erred when it refused her leave to 11 amend her pleadings with a claim for punitive damages. She relies on Rule 1-015(A) 12 NMRA, noting that a party may amend its complaint until such time as the jury 13 receives the case. We agree insofar as Bradley’s statement is factually correct, but her 14 reliance on Rule 1-015(A) fails to acknowledge that such amendments are granted 15 “only by leave of the court or by written consent of the adverse party.” Rule 1- 16 015(A). As our Supreme Court held in Constructors, Ltd. v. Garcia, the decision of 17 whether to grant a party leave to amend rests in the sound “discretion of the [district] 18 court.” 86 N.M. 117, 118, 520 P.2d 273, 274 (1974). A district court abuses this 19 discretion when its actions exceed “the bounds of reason, all the circumstances before

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1 it being considered.” Martinez v. Ponderosa Prods., Inc., 108 N.M. 385, 386, 772 2 P.2d 1308, 1309 (Ct. App. 1988) (emphasis omitted) (internal quotation marks and 3 citations omitted). And we will not reverse a district court’s ruling under this standard 4 unless its “decision is clearly untenable, or when it is clearly contrary to the logic and 5 effect of the facts and circumstances of the case.” Id. (internal quotation marks and 6 citation omitted). When analyzing for abuse of discretion, we examine the entire 7 record, not only those facts that favor the plaintiff. Minor v. Homestake-Sapin 8 Partners Mine, 69 N.M. 72, 73-74, 364 P.2d 134, 135 (1961). 9 The district court did not abuse its discretion by disallowing Bradley’s punitive 10 damages claim. In her original complaint, dated March 23, 2005, Bradley sought 11 relief for prima facie tort, intentional infliction of emotional distress, and invasion of 12 privacy. As compensation, she asked the court to award compensatory damages for 13 past and future “earnings she would have received” and for “mental anguish and 14 humiliation.” 15 Bradley never formally moved for leave to amend her complaint. She waited 16 until discovery was complete and then included a claim for punitive damages in her 17 motion in limine. Neither did she demonstrate any intent to seek punitive damages 18 during the discovery phase of the case, nor have we located any facts in the record to 19 suggest that any new evidence prompted her claim. Lovelace’s interrogatory No. 6,

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1 asked Bradley to “[i]dentify with specificity and particularity each and every element 2 and item of damage . . . that you contend you are entitled to recover.” In her response, 3 Bradley stated her intent was to seek “Lost Wages, Benefits, Emotional Distress, and 4 Costs.” She made no mention of punitive damages. Likewise, during her deposition, 5 Bradley never mentioned punitive damages. 6 A year and a half after her original complaint, after the conclusion of discovery, 7 Bradley raised the issue of punitive damages in passing, in her pre-trial motion in 8 limine filed on December 1, 2006. In that document, which purported to state the 9 “factual basis of plaintiff’s claims,” Bradley made clear that she was seeking “lost 10 wages, lost benefits, emotional distress damages and punitive damages.” Naturally, 11 Lovelace was somewhat caught off-guard by this new development, and on December 12 27, 2006, it filed a motion to dismiss Bradley’s punitive damages claim as untimely. 13 Prior to trial, the court denied Bradley’s request to seek punitive damages. 14 Thus, in this case, the district court refused to consider a claim for punitive 15 damages—raised months after the conclusion of discovery—where no new evidence 16 had arisen to implicate such damages. Bradley never filed a formal motion to amend 17 under Rule 1-015(A). Not having pled a claim for punitive damages, and having only 18 implied such a claim’s existence, the district court was well within its discretion when 19 it barred her tardy attempt to assert one. We cannot say that such a refusal

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1 contravenes the bounds of reason and logic, such as to create an abuse of discretion. 2 We affirm. 3 3. Vicarious Liability 4 We consider now the issue of vicarious liability because it constitutes the 5 dispositive basis upon which all remaining issues depend. Bradley argues that 6 Lovelace should be held vicariously liable for the actions of its employees and 7 contends that the district court ruled improperly that Lovelace was not liable as a 8 matter of law. She puts forward a twofold argument. First, she asserts that her 9 coworkers acted within the course and scope of their employment when they viewed 10 her private medical information. Second, she argues that even if her coworkers were 11 acting outside the course and scope of their employment, Lovelace ratified or 12 condoned their conduct by not taking more decisive disciplinary, preventative, and 13 remedial actions. 14 At the close of Lovelace’s case in chief, the district court entered a directed 15 verdict that Bradley’s coworkers were not acting within the course and scope of their 16 employment and that Lovelace did not ratify their conduct.1 Such verdicts are granted

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17 Lovelace denies that its employees accessed Bradley’s records in September 18 of 2004 and points to its internal investigation for support. The district court never 19 reached the issue, assuming as it did, that even if Bradley’s coworkers did access her 20 records in September 2004, they were acting outside of the course and scope of their 21 employment.

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1 when “there is no legally sufficient evidentiary basis for a reasonable jury to find in 2 favor of a party.” Hedicke v. Gunville, 2003-NMCA-032, ¶ 9, 133 N.M. 335, 62 P.3d 3 1217 (filed 2002). We review a district court’s entry of a directed verdict de novo. 4 Id. 5 A. Course and Scope of Employment 6 Bradley argues that her coworkers acted in the course and scope of their 7 employment with Lovelace when they improperly accessed her medical information. 8 She contends that, at the very least, reasonable minds could differ, and therefore the 9 issue should have been submitted to the jury. Generally, an employer bears no 10 liability for the intentional torts of an employee. Ocana v. Am. Furniture Co., 2004- 11 NMSC-018, ¶ 29, 135 N.M. 539, 91 P.3d 58. However, an employer may be held 12 liable when its employees commit intentional torts in the course and scope of their 13 employment. Los Ranchitos v. Tierra Grande, Inc., 116 N.M. 222, 226, 861 P.2d 263, 14 267 (Ct. App. 1993). Employees commit intentional torts within the course and scope 15 of their employment when their acts are “naturally incident to the business” for which 16 they were employed and are done “with a view to further the [employer’s] interests.” 17 Id. (internal quotation marks and citation omitted). An employee’s intentional torts 18 are not within the course and scope of employment when they “arise wholly from 19 some external, independent, and personal motive” done “upon his own account.” Id.

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1 (emphasis omitted) (internal quotation marks and citation omitted). Committing an 2 intentional tort on company time, from one’s seat on company premises, does not 3 necessarily mean the tort was committed within the course and scope of employment. 4 The question of whether an employee acted within the course and scope of his duties 5 is usually a question of fact, but when no reasonable trier of fact could differ on the 6 issue, a district court may grant judgment as a matter of law. Rivera v. N.M. Highway 7 & Transp. Dep’t, 115 N.M. 562, 564, 855 P.2d 136, 138 (Ct. App. 1993). 8 In Rivera, the plaintiff sought to impose vicarious liability on his employer, the 9 New Mexico Highway and Transportation Department. Id. at 563, 855 P.2d at 137. 10 While working on a highway project, the plaintiff and his coworkers took a break 11 while awaiting more materials to finish the job. During this lull in the work, one of 12 the plaintiff’s coworkers threw a container of water at the plaintiff and prompted him 13 to jump out of the way. In so doing, the plaintiff entered the roadway and was struck 14 by a vehicle. Id. The defendant had published rules, prior to the incident, prohibiting 15 such conduct. Id. The district court held that the defendant was not liable because its 16 employee was not acting within the course and scope of his duties; and although the 17 issue at trial was whether the defendant had waived sovereign immunity under the 18 New Mexico Tort Claims Act, we reviewed the case under the more stringent 19 requirements of respondeat superior. Id. at 563-64, 855 P.2d at 137-38. We held that

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1 the employee tortfeasor was not acting within the course and scope of his employment 2 because “the act of throwing water on [the p]laintiff . . . was not done with a view of 3 furthering the employer’s interest” and arose “from purely personal motives.” Id. at 4 564, 855 P.2d at 138; Los Ranchitos, 116 N.M. at 226, 861 P.2d at 267; Benham v. All 5 Seasons Child Care, Inc., 101 N.M. 636, 638, 686 P.2d 978, 980 (Ct. App. 1984). 6 Bradley introduced no evidence at trial to indicate that her coworkers accessed 7 her records with the purpose of furthering the interests of Lovelace. Her case in chief 8 included only evidence that her coworkers accessed her records. Because she 9 presented no evidence at trial that her coworkers were furthering Lovelace’s interests 10 at the time of the access, no reasonable fact finder could conclude that they were 11 acting within the boundaries of their employment. Accordingly, we affirm the result 12 reached by the district court on the issue of course and scope. 13 B. Employer Ratification or Assent 14 Bradley contends that even if we hold against her on the issue of course and 15 scope, we should nevertheless hold Lovelace liable because it ratified and condoned 16 the tortious conduct of its employees. Even where an employee acts outside the 17 course and scope of his employment, the employer may still be held liable if it assents 18 to or ratifies the conduct. See Los Ranchitos, 116 N.M. at 226, 861 P.2d at 267. As 19 with course and scope, ratification is generally a matter of factual determination for

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1 the jury except where reasonable minds could not differ. N. v. Pub. Serv. Co. of N.M., 2 97 N.M. 406, 409, 640 P.2d 512, 515 (Ct. App. 1982). 3 Bradley argues that Lovelace ratified its employees conduct by failing to 4 conduct proper employee training prior to the event, by failing to maintain a more 5 secure computer system, and by failing to adequately discipline the guilty employees 6 after the event. She introduced evidence, that although Lovelace employees received 7 training on the impropriety of accessing patient files, Lovelace’s training program was 8 somewhat less intensive than programs offered by other hospitals. The court also 9 heard evidence concerning the Lovelace computer system, which was incapable of 10 automatically detecting whether an improper access had occurred. And although 11 Bradley asserts that Lovelace failed to discipline the employees for their conduct, the 12 record clearly indicates that Baca received a written reprimand for accessing Bradley’s 13 file on another occasion and that all other employees who failed to report improper 14 accesses were orally reprimanded. 15 Lovelace argues that it did not ratify the conduct of its employees, and at trial 16 it offered evidence that it had preventative measures in place prior to the event, that 17 its computer system was password protected, that remedial measures were taken after 18 the incident, and that all offending employees were disciplined. All new employees 19 at Lovelace were familiarized with privacy procedures at the time of hiring and were

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1 required to sign a statement that they had read the code of conduct, which prohibited 2 improper access of patient records. Access to the Lovelace computer system was 3 password protected, and all employees were required to log off when they left their 4 desk. Also, employees were only given access to those areas of the computer system 5 required by their individual positions. Upon being notified of Bradley’s complaint, 6 Lovelace conducted an internal investigation into the matter, and although it was 7 unable to determine if an improper access occurred in September 2004 it determined 8 that other improper accesses had otherwise occurred and disciplined those employees 9 accordingly. After Bradley’s complaint, Lovelace also conducted mandatory privacy 10 training for all 300 employees in its central billing office. 11 Bradley cites no case law to support her position that Lovelace’s acts or failures 12 to act constituted a ratification. We therefore assess only the evidence before the 13 district court and hold that reasonable minds could not differ on whether Lovelace 14 ratified the conduct of its employees. In fact, the evidence presented at trial indicates 15 just the opposite. Both before and after the events which gave rise to this appeal, 16 Lovelace took measures to prevent improper access of patient files, and we hold that 17 the district court properly granted a directed verdict on this issue. 18 4. Hearsay Testimony

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1 We now consider Bradley’s argument that certain testimony of Lovato was 2 erroneously excluded as hearsay. Bradley offered Lovato’s testimony to prove that 3 her medical information was improperly accessed. Lovato would have testified that 4 Romero told Aragon about Bradley’s file being accessed. Lovelace objected on the 5 basis that the evidence was hearsay within hearsay], and after an extended exchange 6 outside the hearing of the jury, the court sustained on that basis. Both Aragon and 7 Romero denied that they made the statements. 8 We review the exclusion of evidence at trial for abuse of discretion. Coates v. 9 Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999. The party 10 against whom the district court ruled must prove on appeal that the “exclusion of 11 evidence was prejudicial in order to obtain a reversal.” Cumming v. Nielson's, Inc., 12 108 N.M. 198, 204, 769 P.2d 732, 738 (Ct. App. 1988). We will not hold that a 13 district court abused its discretion “unless we can characterize [its ruling] as clearly 14 untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 15 438, 971 P.2d 829 (filed 1998) (internal quotation marks and citation omitted). 16 Bradley argues that the district court incorrectly classified Lovato’s testimony 17 as hearsay within hearsay. The hearsay rule does not apply, Bradley contends, 18 because the statements of both Aragon and Romero were those of party opponents and 19 were therefore not hearsay. In support of her argument, she cites Rule 11-

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1 801(D)(2)(d) NMRA and Rule 11-805 NMRA. Rule 11-805 provides that “[h]earsay 2 included within hearsay is not excluded under the hearsay rule if each part of the 3 combined statements conforms with an exception to the hearsay rule provided in these 4 rules.” Rule 11-801(D)(2)(d) provides that statements made by a “party’s agent or 5 servant concerning a matter within the scope of the agency or employment, made 6 during the existence of the relationship” qualify as statements by a party opponent, 7 and therefore, are not hearsay. 8 The district court found Lovato’s testimony to be hearsay within hearsay, and 9 we agree. Bradley’s argument would be persuasive if Aragon and Romero had been 10 speaking of “a matter within the scope” of their employment. Id. But they were not 11 discussing such a matter. They were discussing the fact that Bradley’s personal 12 medical information had been improperly accessed. And as we held above in our 13 analysis of respondeat superior, Bradley’s information—assuming it was 14 accessed—was accessed by her coworkers outside the course and scope of their 15 employment. Any discussion of it was likewise outside the course and scope of 16 employment. Thus, we cannot hold that the district court abused its discretion when 17 it excluded the testimony. We affirm.

18 5. Intentional Infliction of Emotional Distress

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1 At the conclusion of Bradley’s case in chief, Lovelace moved for a directed 2 verdict on her claim for intentional infliction of emotional distress. The district court 3 granted the motion on the basis that Lovelace’s actions were not “extreme and 4 outrageous” and therefore failed the elements of the tort. Bradley argues that the 5 district court’s ruling was improper and that she presented sufficient evidence to 6 support her claim. We agree with Bradley, insofar as the basis upon which the district 7 court granted Lovelace’s motion was faulty. Nevertheless, we affirm because the 8 district court was “right for the wrong reason.” Capco Acquisub, Inc. v. Greka Energy 9 Corp., 2008-NMCA-153, ¶ 35, 145 N.M. 328, 198 P.3d 354. We review a district 10 court’s entry of a directed verdict do novo. Hedicke, 2003-NMCA-032, ¶ 9. 11 In order to state a claim for intentional infliction of emotional distress, a 12 plaintiff must establish: (1) the extreme and outrageous nature of the defendant’s 13 conduct, (2) that the defendant acted intentionally or with reckless disregard for the 14 plaintiff, (3) that the plaintiff’s mental distress was extreme and severe, and (4) that 15 the plaintiff’s emotional distress was caused by the defendant’s conduct. Trujillo v. 16 N. Rio Arriba Elec. Coop., 2002-NMSC-004, ¶ 25, 131 N.M. 607, 41 P.3d 333 (filed 17 2001). Our caselaw defines extreme and outrageous conduct as conduct that “is so 18 outrageous in character, and so extreme in degree, as to go beyond all possible bounds 19 of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

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1 community.” Id. (internal quotation marks and citation omitted). When deciding 2 whether a claim may go forward under the tort of intentional infliction of emotional 3 distress, the district “court should determine as a matter of law whether the conduct 4 at issue reasonably may be regarded as so extreme and outrageous that it will permit 5 recovery.” Id. ¶ 26 (internal quotation marks and citation omitted). If reasonable 6 minds could differ on whether the facts meet this standard, the district court should 7 allow the case to proceed. Id. 8 In her case in chief, Bradley attempted to establish that the actions of her 9 coworkers were extreme and outrageous. She then sought to prove that those actions 10 were either done in the course and scope of employment or were ratified by Lovelace. 11 The district court was therefore required to determine, first, whether the employees’ 12 conduct was extreme and outrageous, and second, whether Lovelace ratified or 13 condoned it. But at the time it announced its ruling, the district court had done 14 neither. It considered the employees’ alleged outrageous conduct to be of no 15 consequence. The court stated, “looking . . . up [someone’s private medical records] 16 might be [extreme and outrageous], but you didn’t sue the people who looked them 17 up. The question is whether what Lovelace did, if anything, was extreme and 18 outrageous.” The court then went on to analyze Lovelace’s conduct, finding that it 19 was neither extreme nor outrageous. But the court confused its analysis of intentional

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1 infliction of emotional distress with the doctrine of respondeat superior, as the 2 following statement by the court illustrates:

3 “Well, the intentional infliction of emotional distress, to tell you the 4 truth, I am inclined to grant [Lovelace’s] motion. The only way you 5 think that they may have condoned [the behavior of their employees] is 6 because they didn’t have a tracking system, and I am not prepared to say 7 that not having a tracking system is extreme and outrageous conduct.”

8 The record indicates that the district court erroneously analyzed this issue. The 9 court should have first determined whether Bradley’s evidence was sufficient to 10 support the claim that her coworkers acted outrageously. Next, the court should have 11 turned to the issue of respondeat superior, or failing that, left the issue to be decided 12 later in the trial. Instead, the court refused to consider whether Lovelace’s employees 13 acted outrageously and focused on the actions of Lovelace. The actions of Lovelace, 14 however, were only relevant to the extent they tended to prove Lovelace’s ratification 15 of its employees’ allegedly outrageous acts. It was therefore improper to analyze them 16 under the extreme and outrageous standard. 17 Though the district court analyzed this issue improperly, it’s faulty analysis was 18 cured later when it found that as a matter of law Lovelace was not vicariously liable 19 for the actions of its employees. We may affirm a district court where it is right for 20 the wrong reason, and we do so here. Capco Acquisub, Inc., 2008-NMCA-153, ¶ 35; 21 see Romero v. Prince, 85 N.M. 474, 476, 513 P.2d 717, 719 (Ct. App. 1973).

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1 6. Invasion of Privacy 2 Finally, we review Bradley’s argument that the district court improperly 3 dismissed her claim for invasion of privacy as a matter of law. She contends that the 4 actions of her coworkers constituted a publication of private facts, and as such, the 5 issue should have been submitted to the jury. We review a district court’s entry of a 6 directed verdict do novo. Hedicke, 2003-NMCA-032, ¶ 9. 7 Bradley offered no evidence at trial that Lovelace, itself, published her private 8 facts. Her theory instead focused on proving the culpability of her coworkers and 9 imputing it to Lovelace through the doctrine of vicarious liability. Above, we held 10 that the district court correctly found that as a matter of law Lovelace neither ratified 11 nor condoned the conduct of its employees in this case. Likewise, we held that the 12 district court properly found that those employees were not acting in the course and 13 scope of their employment at the time they accessed Bradley’s private information. 14 Based on the evidence presented at trial, vicarious liability would be the only way to 15 sound a valid claim against Lovelace for invasion of privacy. Accordingly, because 16 we hold that Lovelace is not vicariously liable, we affirm the district court’s dismissal 17 of Bradley’s invasion of privacy claim.

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1 CONCLUSION 2 We affirm on all issues and hold that the district court: (1) properly granted 3 summary judgment to Lovelace on Bradley’s claim of prima facie tort; (2) did not 4 abuse its discretion when it denied Bradley leave to amend her complaint with a claim 5 for punitive damages; (3) properly held that, as a matter of law, Lovelace was not 6 vicariously liable for the intentional torts of its employees; (4) did not abuse its 7 discretion when it refused to allow hearsay within hearsay evidence at trial; (5) 8 properly dismissed Bradley’s intentional infliction of emotional distress claim; and 9 (6) properly dismissed Bradley’s invasion of privacy claim. 10 IT IS SO ORDERED.

11 12 RODERICK T. KENNEDY, Judge

13 WE CONCUR:

14 15 JAMES J. WECHSLER, Judge

16 17 MICHAEL E. VIGIL, Judge