Lewis v. Samson

1999 NMCA 145, 992 P.2d 282, 128 N.M. 269

• Court: New Mexico Court of Appeals
• Decided: November 19, 1999
• Docket: 19,281
• Status: Published

Opinions

OPINION

APODACA, Judge.

{1} Marta C. Lewis (Plaintiff) appeals from a judgment after a jury verdict in favor of Dr. Norberto R. Samson and Dr. Raymond F. Ortiz (Defendants). As personal representative of the estate of Martin C. Lewis (the patient), Plaintiffs son, Plaintiff filed a medical malpractice suit against Defendants alleging wrongful death of the patient. The patient died while in the care of Defendants for treatment of multiple stab wounds suffered at the hands of Moses Griego, a nonparty (the assailant). Plaintiff raises four issues on appeal, claiming that the trial court (1) abused its discretion by excluding the testimony of several witnesses, (2) improperly injected the issues of the comparative fault and negligence per se of the assailant in a case essentially limited to successive tortfeasor liability, (3) should have conducted an evidentiary hearing on Plaintiffs motion for a change of venue, and (4) improperly excluded a letter from a certain physician that summarized the patient’s treatment.

{2} We hold that the trial court abused its discretion in declining to reopen discovery to allow amendment of Plaintiffs witness list to add an additional witness several months before trial. We therefore reverse and remand for a new trial. Because we are remanding for a new trial on Plaintiffs first issue, we address the successive tortfeasor liability issue and the venue issue since they may reoccur at a second trial. Because of our disposition, we need not address Plaintiffs remaining issue on exclusion of the physician’s letter and other witnesses.

{3} Regarding the nature of the tort liability under the facts of this appeal, we hold that the trial court erred in not determining as a matter of law before trial that Defendants were successive, and not concurrent, tortfeasors. In that regard, we also hold that the court erred in failing to ensure that trial counsel limited their argument and the evidence to that theory of liability. Finally, on the venue issue, we conclude that the trial court was not required to conduct an evidentiary hearing and did not err in denying Plaintiffs motion for a change of venue.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts

{4} In February 1994, at approximately two o’clock in the morning, the patient was taken to the emergency room at Dan C. Trigg Memorial Hospital (Memorial Hospital) in Tucumcari, New Mexico, suffering from eight stab wounds primarily to the chest. He incurred the wounds in a fight with the assailant, who was later convicted of second-degree murder under NMSA 1978, § 30-2-1 (1994), as a result of the stabbing incident. Defendant Ortiz, an internist at Memorial Hospital, first treated the patient. Dr. Ortiz then called in Defendant Samson, a local general surgeon. Initially, Defendants treated the patient with transfusions of blood, sutured the wounds, and then inserted chest tubes. During this treatment, Dr. Ortiz telephoned University of New Mexico Hospital (UNM Hospital) to request an emergency transfer for a thoracotomy or for other assistance as deemed necessary by that hospital.

{5} The substance of Dr. Ortiz’ first request was strongly disputed at trial. The doctor claimed that he first requested assistance from UNM Hospital for the patient during a 3:06 a.m. phone call. Plaintiff, however, claimed the doctor first requested assistance from UNM Hospital during a 3:57 a.m. phone call. Dr. Hanosh, a specialist in thoracic surgery at UNM Hospital, responded telephonieally on behalf of that hospital at approximately 4:20 a.m., according to his private phone records. He informed Dr. Ortiz that the patient would not survive the trip to UNM Hospital; Dr. Ortiz replied that Dr. Samson was unwilling to perform the thoracotomy.

{6} Dr. Hanosh arrived at Memorial Hospital at approximately 6:11 a.m. and immediately performed a thoracotomy. By Dr. Ha-nosh’s arrival, the patient had suffered a cardiac arrest. He was pronounced dead at 6:17 a.m. Additional facts will be discussed as relevant to our discussion of the issues.

B. Relevant Trial Court Proceedings

1. Pretrial Proceedings

{7} Initially, Plaintiff filed this case in the District Court of Bernalillo County in October 1995, naming UNM Hospital as an additional defendant. By stipulation of the parties, Plaintiff refiled the case in the District Court of Quay County after Plaintiff moved to dismiss UNM Hospital as a defendant. At a pretrial conference in February 1997, the court set July 14, 1997, as the trial date. The court did not set a discovery deadline at that time.

{8} Also in February 1997, Plaintiff responded to Defendants’ request for a list of witnesses by designating “any and all personnel from [Memorial Hospital],” subject to a final witness list. By letter dated March 14, 1997, counsel for Dr. Ortiz requested Plaintiff to supplement her witness list. Plaintiff did not immediately respond. Instead, in May 1997, Plaintiff served a witness list on each Defendant. On June 11, 1997, about a month before the trial date, Plaintiff informed Defendants of her intention to add Penny Griner, an employee of UNM Hospital, to the witness list. Plaintiff intended for Ms. Griner to testify regarding UNM Hospital’s procedures for responding to telephone calls. Plaintiff stated at that time that Ms. Griner would be unavailable until the week of June 16. On June 13, Defendants moved to exclude Ms. Griner as a witness on grounds of late disclosure. As of that date, the court had not set any discovery deadlines nor entered a pretrial order. At no time did Defendants depose Ms. Griner.

{9} The court held a pretrial conference on June 17, 1997. At the hearing, counsel argued the relevance of the assailant’s conviction and his comparative fault to the issues in this case. The trial court postponed its decision on Defendants’ motion to exclude Ms. Griner until June 30, 1997. The court entered a pretrial order the next day, June 18, 1997, which identified the parties’ respective witness lists, and set a deadline of June 27, 1997, for all depositions and all other discovery.

{10} At a hearing on June 30, 1997, the court granted Defendants’ motion to exclude Ms. Griner as a witness. Plaintiffs counsel unsuccessfully argued that her failure to designate Ms. Griner was an “oversight” based on her previous belief that Defendants would depose ’ Drs. Hanosh and Burton of UNM Hospital, who could discredit Defendants’ version of the facts as well as Ms. Griner could. Indeed, at the February 17 pretrial conference, Dr. Ortiz indicated an intent to depose these two doctors.

{11} On July 14, the parties were ready to begin the trial, but they were unable to impanel twelve impartial jurors due to Defendants’ close ties in the community. The trial court rescheduled trial for January 1998. On July 24, 1997, after trial was rescheduled, Plaintiff filed three motions.

{12} In her first motion, Plaintiff sought to preclude Defendants from arguing the comparative fault of the assailant at trial on the ground that Defendants were successive tortfeasors, not concurrent tortfeasors. In September 1997, the trial court denied the motion, stating that the motion presented evidentiary issues best resolved by proper jury instruction.

{13} Plaintiffs second motion sought to reopen discovery and to designate additional witnesses. As noted in her brief in support of her motion, these witnesses included Ms. Griner, Sharon Faison, R.N., and “a witness from Amarillo to prove Amarillo accepts patients from New Mexico.” Plaintiff identified Ms. Faison as one who would testify on the availability of “rib spreaders” at Memorial Hospital. In a response dated August 11, 1997, Dr. Ortiz opposed this motion on the grounds that Plaintiff failed to demonstrate “manifest injustice” and that Plaintiff had ample prior opportunity for discovery. At a hearing in September 1997, Plaintiff stated that she desired to call Dr. Hanosh as a witness also. The trial court denied Plaintiffs second motion.

{14} Finally, Plaintiffs third motion sought a change of venue. At a hearing on September 2, the court considered several affidavits filed by Plaintiff, including the affidavit of a jury consultant. Plaintiff requested a specific “evidentiary” hearing. The court denied her motion for an evidentiary hearing and also denied the request for a change of venue.

2. Trial Proceedings

{15} The case was tried in mid-January 1998. Before the trial began, Plaintiff reiterated her objection to Defendants’ presentation of a comparative-fault case. Once again, the trial court rejected Plaintiffs argument, this time expressly ruling that Defendants could present evidence of comparative fault and the negligence per se of the assailant. In doing so, it admonished Defendants not to dwell extensively on the details of the criminal matter involving the assailant.

{16} During Defendants’ opening statements, they both emphasized the assailant’s guilt and generally presented a comparative-fault defense to the jury. The first point of Dr. Ortiz’ counsel’s opening was the details of the fight leading to the “brutal stabbing.” She contended that it would be an injustice to blame Defendants for the assailant’s wrongdoing. Upon objection by Plaintiff, the court informed Dr. Ortiz’s counsel to proceed, and a brief exchange continued concerning the assailant’s trial and conviction. Dr. Ortiz’s counsel also indirectly referred to the assailant by stating that Dr. Ortiz was not the one who stabbed the victim. Counsel made no further mention of the assailant’s criminality or liability during her opening statement.

{17} Dr. Samson’s counsel also began his opening with the assailant’s criminality and liability. He narrated the events leading up to the fight, describing how the patient was first drinking at several bars with a “transient,” and that he was wearing “cowboy” clothes at the assailant’s apartment and that the fight apparently started because of a “cowboy thing.” Counsel for Dr. Samson revisited the assailant’s criminality later in his opening, reading from both the criminal information and the judgment and sentence entered in the criminal case and stipulated as an exhibit at trial. He reminded the jury that the assailant was already found guilty of second-degree murder beyond a reasonable doubt for killing the patient. He further referred to the cause of death listed in the autopsy as “homicide.” Dr. Samson’s counsel argued during his opening statement that the case was not a medical malpractice case but a case of “cowardly, back-stabbing murder.”

{18} During trial, the parties disputed the time that Dr. Ortiz first contacted UNM Hospital regarding the patient. Dr. Ortiz testified that he first called UNM Hospital at 3:06 a.m. Plaintiff claimed that the 3:06 a.m. telephone call concerned the proposed transfer of another patient and that Dr. Ortiz first called UNM Hospital regarding this case at 3:57 a.m., based on telephone billing records. Due to the trial court’s previous ruling regarding Plaintiffs motion to add additional witnesses, Plaintiff could not offer the testimony of Ms. Griner, or possibly Dr. Hanosh, to refute Dr. Ortiz’ version of the 3:06 a.m. call.

{19} Plaintiff also attempted to discredit Dr. Ortiz by introducing the medical records of Dr. Hanosh. In a letter report from Dr. Hanosh to Memorial Hospital, there was no indication Dr. Hanosh thought himself or UNM Hospital responsible for any delays in his departure for Tucumcari. Additionally, Dr. Hanosh suggested he believed that, had he arrived in Tucumcari sooner, the patient might have survived. The trial court precluded this letter report for lack of foundation, despite Plaintiffs protestations that it was admissible under either the business records or “medical records” exceptions.

{20} The parties also disputed whether Defendants could have performed thoracic surgery without waiting for Dr. Hanosh to arrive from UNM Hospital and whether Defendants tardily inserted the chest tubes. Defendants argued that they lacked the proper equipment for a thoracotomy. Dr. Samson’s expert witness, Dr. Carl Lagerstrom, stated during trial that he would have done “the things that [he has] learned to do that [he] knows[s] are effective in treating people and saving their lives.” Plaintiffs expert witness, Dr. Michael Bartlett, an expert in emergency medicine, testified that he believed Defendants were capable of performing a thoracotomy with the equipment available to them. Dr. Bartlett also testified that Defendants inexcusably delayed both the blood transfusions and the insertion of the chest tubes and also should have immediately transferred the patient to UNM Hospital. He testified that, with proper medical intervention, the patient’s chances of survival “were well in excess of 50%.” Additionally, in response to the question whether the patient had a better than ninety percent chance of survival, the doctor said he thought that there was.

{21} Before closing arguments, Plaintiff and Defendants both submitted jury instructions on comparative fault. Plaintiff failed to request a jury instruction on either apportionment of the patient’s injuries based on proximate cause or on possible enhancement of his injury arising from Defendants’ negligence. Plaintiff objected to Defendants’ instruction on negligence per se. The jury was eventually instructed on the assailant’s and Defendants’ comparative fault and negligence per se.

{22} During closing arguments, counsel for Dr. Ortiz stated that, as a matter of proximate cause, the assailant alone was responsible for the patient’s death. Dr. Samson’s counsel emphasized the assailant’s wrongdoing to a greater degree, twice-characterizing the case as “cowardly, back-stabbing murder,” that the assailant had already been found responsible for the patient’s death beyond a reasonable doubt, and that justice had been served when the assailant was convicted and sentenced for second-degree murder. He again read from the autopsy report, citing its finding that “homicide” was the cause of death.

{23} Essentially, then, both Defendants contended during closing arguments that the assailant’s criminal liability for the stabbing absolved Defendants of any civil liability for their alleged subsequent malpractice. The jury returned a verdict for Defendants, finding that neither of them was negligent.

II. DISCUSSION

A. The Trial Court’s Refusal to Reopen Discovery Several Months Before Trial for the Limited Purpose of Allowing Additional Witnesses Was an Abuse of Discretion

{24} Plaintiff first argues that the trial court abused its discretion in excluding Ms. Griner’s testimony prior to the first trial setting in July 1997. Because we reverse the trial court for its refusal to reopen discovery to allow additional witnesses at the trial in January 1998, we need not address the trial court’s preclusion of Ms. Griner’s testimony at the original trial date.

{25} Our rules in New Mexico favor liberal discovery, see DeTevis v. Aragon, 104 N.M. 793, 797, 727 P.2d 558, 562 (Ct.App. 1986), which allows the parties to develop their cases adequately. Liberal discovery enables the parties “to obtain the fullest possible knowledge of the facts before trial.” Marchiondo v. Brown, 98 N.M. 394, 397, 649 P.2d 462, 465 (1982). The discretion granted to the trial court must be measured in light of this purpose. See id. at 398, 649 P.2d at 466. A trial court nevertheless has broad authority to manage pretrial discovery. See DeTevis, 104 N.M. at 797, 727 P.2d at 562.

{26} A party may also be precluded from presenting witnesses if the disclosure runs afoul of a pretrial order entered by the trial court. See Blumenthal v. Concrete Constructors Co., 102 N.M. 125, 131, 692 P.2d 50, 56 (Ct.App.1984) (“The principle is well established that a pretrial order, made and entered without objection, and to which no motion to modify has been made, ‘controls the subsequent course of action.’ ” (Quoting precursor to Rule 1-016(E) NMRA 1999)). The pretrial order is “ ‘the law of the case.’ ” Gilmore v. Duderstadt, 1998-NMCA-086, ¶ 13, 125 N.M. 330, 961 P.2d 175 (quoting State ex rel. Highway Dep’t v. Branchau, 90 N.M. 496, 497, 565 P.2d 1013, 1014 (1977)).

{27} A court should modify a pretrial .order to prevent “manifest injustice.” Rule 1-016(E); see also Fahrbach v. Diamond Shamrock, Inc., 1996-NMSC-063, 122 N.M. 543, 550, 928 P.2d 269, 276. This Court reviews a trial court’s refusal to modify a pretrial order for an abuse of discretion. See Fahrbach, 1996-NMSC-063, 122 N.M. at 550, 928 P.2d at 276. New Mexico’s Rule 1-016 was taken from Federal Rule of Civil Procedure 16, so we may look to federal precedent for guidance on this issue. See Johnson v. Citizens Cas. Co., 63 N.M. 460, 464, 321 P.2d 640, 643 (1958). Both rules apply a “manifest injustice” standard. Fed.R.Civ.P. 16(e).

{28} In determining whether a trial court has abused its discretion by refusing to reopen discovery deadlines imposed under a pretrial order, federal courts have identified six factors:

“1) whether trial [was] imminent, 2) whether the request [was] opposed, 3) whether the non-moving party would [have been] prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery [would have led] to relevant evidence.”

Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir.1990) (quoting Smith v. United States, 834 F.2d 166, 169 (10th Cir.1987)).

{29} Our review of the record indicates to us the significant presence of several of the six factors noted in Silr-Flo that would have warranted the amendment of the pretrial order in this appeal. Plaintiff essentially argued the substance of these factors in her motion to allow additional discovery and include additional witnesses. First, under the first factor, trial was not imminent at the time of Plaintiffs motion filed in July 1997. The trial had been rescheduled for January 1998. Second, Defendants have not asserted any prejudice on appeal under the third factor. Third, regarding the fifth factor, the trial court precluded all additional discovery at the time of Plaintiffs motion, so an extension of time was foreseeable for any future discovery.

{30} Concerning the sixth factor, we distinguish between the four new witnesses sought by Plaintiff. As Defendants point out, Ms. Faison and the witness from Amarillo would have likely provided cumulative testimony. Dr. Samson apparently stipulated to Ms. Faison’s proposed testimony, namely that rib spreaders were available at Memorial Hospital on the night in question. The Amarillo witness would have testified about the feasibility of transferring patients from Tucumeari to Amarillo. Plaintiffs medical expert, however, attested to this fact during trial. As a result, the trial court did not abuse its discretion in disallowing the depositions of these two witnesses on the ground that their testimony would be superfluous. See, e.g., Davila v. Bodelson, 103 N.M. 243, 253-54, 704 P.2d 1119, 1129-30 (Ct.App.1985) (trial court’s error was harmless where excluded evidence was cumulative of other testimony).

{31} In contrast, however, Ms. Griner would have testified on factual issues central to the case. Plaintiff offered her testimony regarding UNM Hospital’s procedures for responding to phone calls. She could opine on the reasons why UNM Hospital did not respond to Dr. Ortiz’ alleged phone call at 3:06 a.m. for help with the patient. This testimony was highly relevant to both Defendants’ standard of care and Dr. Ortiz’ credibility as a witness in light of his testimony regarding the phone call.

{32} We recognize that Plaintiff could have timely identified Ms. Griner as a witness through diligent discovery far earlier than June 11, 1997, and that Defendants opposed Plaintiffs motion, considerations under the second and fourth factors. Even considering the fact that Defendants opposed Plaintiffs motion, however, we note there was no finding that Plaintiffs oversight was willful and that there was nothing in the record indicating that Plaintiff knew she would be calling Ms. Griner “at an earlier point in time and chose not to disclose their identities until it would be too late for [Defendants] to depose them.” Baca v. Velez, 114 N.M. 13, 16, 833 P.2d 1194, 1197 (Ct.App.1992); see also Shamalon Bird Farm, Ltd. v. United States Fidelity & Guar. Co., 111 N.M. 713, 715-16, 809 P.2d 627, 629-30 (1991). In summary, we conclude that the six factors balance in Plaintiffs favor.

{33} Additionally, the trial court refused to amend or alter its pretrial order despite the fact that the pretrial order’s discovery deadline of June 27 explicitly pertained to the earlier trial date on July 14, 1997, which was vacated. The pretrial order itself expressly reflected the court’s intention to allow discovery until approximately twenty days before trial.

{34} For these reasons, we conclude that the court abused its discretion in prohibiting discovery of Ms. Griner several months before the trial rescheduled in January of 1998. There was no support in the record to warrant such a drastic limit in the timetable for discovery. Because we are reversing on the failure to allow discovery of Ms. Griner, it is not necessary to address the issue relating to Dr. Hanosh.

B. The Trial Court Should Have Precluded the Issue of the Assailant’s Comparative Negligence and Negligence Per Se on Plaintiff’s Pretrial Motion

1. Preservation

{35} Initially, we address' Defendants’ contention that Plaintiff failed to preserve this issue for appeal. “To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App. 1987). In this case, Plaintiff filed a pretrial motion to exclude the assailant from being considered a concurrent tortfeasor. The motion cited Lujan v. Healthsouth Rehabilitation Gorp., 120 N.M. 422, 902 P.2d 1025 (1995), the same authority Plaintiff relies on in this appeal. Plaintiff thus fairly invoked a ruling of the trial court on this issue and preserved it for appeal. See id. (explaining liabilities of concurrent and successive tortfeasors).

{36} We are unpersuaded by Defendants’ argument that Plaintiff failed to preserve this issue by failing to object to the trial court’s jury instructions on comparative negligence. In so contending, Defendants rely on Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 729, 688 P.2d 333, 339 (Ct.App.1984) (holding that party waived complaint regarding instruction where it did not raise specific objection), and Romero v. Mervyn’s, 109 N.M. 249, 253 n. 2, 784 P.2d 992, 996 n. 2 (1989) (“Sufficiency of evidence to submit a case to a jury, or to support a verdict, cannot be raised on appeal unless the lack of substantial evidence on a material issue has been specifically called to the trial court’s attention by, e.g., a motion for a directed verdict, objection to instructions, or a motion for [judgment notwithstanding the verdict].”). The real issue in this appeal, however, is whether Defendants were successive tortfeasors as a matter of law and whether the trial court should have so determined. We believe that issue was preserved when Plaintiff filed her motion to preclude Defendants from arguing comparative fault by the assailant on the grounds that Defendants were successive tortfeasors. The trial court denied that motion.

{37} The issue on appeal, as we view it, is not whether Plaintiff failed to tender the proper instruction on successive tortfeasor liability. Instead, the question before us is whether the trial court should have, as a matter of law, excluded all mention during the trial of concurrent tortfeasor liability and the assailant’s negligence per se, as irrelevant to the liability of Defendants against whom Plaintiff sought damages as successive, not concurrent, tortfeasors, as to the original liability of the assailant. The claimed error, we believe, essentially occurred during opening and closing arguments and throughout the trial, when Defendants argued the assailant’s comparative fault to the jury. The “horse was out of the barn” before the jury was instructed, and Plaintiffs motion would have prevented the error. In this respect, Plaintiffs pretrial request served as a motion in limine seeking to withhold irrelevant and prejudicial information from the jury. She wanted to limit remarks and argument concerning the assailant’s criminal or civil liability. The trial court, however, refused to do so.

2. The Trial Court Should Have Determined Prior to Trial That the Assailant Was Not a Concurrent Tortfeasor

{38} We agree with Plaintiff that the holding in Lujan, 120 N.M. at 425-26, 902 P.2d at 1028-29, would permit determination by a trial court of successive tortfeasor liability before trial. As other cases suggest, there may be times when such a determination cannot be made until some or all of the evidence has been adduced at trial. Such is not the ease under the facts in this appeal, however, for the reasons we discuss below. Because the Supreme Court in Lujan considered the issues before it in the context of a summary judgment proceeding, it did not have the opportunity to provide guidance for a trial court to consider in addressing and applying successive tortfeasor liability to the manner in which the trial proceedings are conducted. Because we are remanding this appeal for a new trial, for the trial court’s guidance, we take this opportunity to provide the analysis and procedure that should be followed in the course of a trial that may involve successive tortfeasor liability.

{39} In Lujan, a personal injury plaintiff sustained a broken leg in an automobile accident. He signed a release discharging the defendant motorist and “all other persons ... who ... may be jointly or severally liable to the Releasors ... for damages to Releasors’ person ... arising out of an accident on or about January 27, 1990, at the intersection of Blake and Tapia, SW, Albuquerque, New Mexico.” 120 N.M. at 423-24, 902 P.2d at 1026-27. After executing the release, the plaintiff sued Healthsouth, alleging that its employee improperly manipulated plaintiffs leg in March 1990, refracturing the original break. See id. at 424, 902 P.2d at 1027. Healthsouth moved for summary judgment on the ground that plaintiffs release barred the medical malpractice claims. See id. The trial court granted summary judgment, and this Court affirmed. Our Supreme Court, however, reversed, holding that the general release did not bar claims “against a successive tortfeasor whose liability is limited to an injury enhancement arising out of the subsequent malpractice.” Id. at 423, 902 P.2d at 1026.

{40} Despite the procedural differences between Lujan and this case, we believe Lujan’s holding and discussion concerning successive tortfeasor liability are relevant here where the case proceeded to a jury trial on the merits and will do so again on remand. We also realize that the specific question before our Supreme Court in Lujan was different. The issue there was whether the release form signed by the plaintiff precluded the plaintiff from later seeking damages against the defendant for malpractice as a result of alleged injury enhancement after the initial accident. But to answer that question, the Court was required to apply its analysis, as a matter of law, to conclude that the defendant in a medical malpractice context was a successive, not a concurrent, tortfeasor. That is precisely the question that was before the trial court below and is now before us on appeal. We thus consider the analysis and holding in Lujan not only instructive but binding.

{41} The Court in Lujan determined successive tortfeasor liability as a matter of law on a summary judgment motion, thus illustrating that a court can make that determination without hearing evidence. See id. at 425-26, 902 P.2d at 1028-29. Based on the facts concerning the plaintiffs original injury, malpractice claims, and refracture, the Court determined that Healthsouth was .a successive tortfeasor. See id. at 423-26, 902 P.2d at 1026-29. Similarly, the trial court here, under the particular facts in this appeal, could have determined Defendants’ successive tortfeasor liability based on Plaintiffs motion. An important consideration, in this regard, is that Plaintiff stipulated to the assailant’s stabbings. Plaintiff also alleged that Defendants’ negligence enhanced the patient’s original injury. In our view, that is all the trial court needed to know to alert it to Plaintiffs liability theory. More specifically, for the reasons that follow, we believe this information sufficed to preclude argument and evidence of the assailant as a concurrent tortfeasor.

{42} “When the negligent acts or omissions of two or more persons combine to produce a single injury, the law considers those persons concurrent tortfeasors.” Lujan, 120 N.M. at 425, 902 P.2d at 1028. In such cases, “ ‘two or more causes combine to produce ... a single result, incapable of any reasonable division.’” Id. (alteration in original) (quoting W. Page Keeton et al., Prosser and Keeton on the Latv of Torts § 52, at 347 (5th ed.1984)). New Mexico has abolished joint and several liability among concurrent tortfeasors, and each such tortfeasor is liable for their respective share of the damages based upon the comparative fault of each. See id.

{43} In contrast, two tortfeasors combining to produce divisible and causally distinct injuries are considered successive tortfeasors. In Lujan, our Supreme Court held as a matter of law, based on the facts in that case, that Healthsouth and the defendant motorist (the original tortfeasor) were “not concurrent tortfeasors; they [were] successive tortfeasors by reason of divisible and causally-distinct injuries.” Id. at 425-26, 902 P.2d at 1028-29. Having so held, the Court, in passing, identified five relevant “factors” that some courts have considered in determining whether a tortfeasor is concurrent or successive in a given case. The Court, however, did not take those factors into account, nor did it need to under the facts in Lujan. Neither do we in this appeal. Instead, we interpret Lujan to hold that in a medical malpractice case with facts similar to those found in Lujan and in this appeal, the medical care provider is a successive, not a concurrent, tortfeasor solely by reason of divisible and causally-distinct injuries. Consideration of the five factors is not necessary in such a factual context. The Court in JLüjan also held that “[a] Bartlett-style apportionment of fault is inapplicable to a successive and distinct enhancement of an original injury at the hands of a subsequently negligent physician.” Id. at 426, 902 P.2d at 1029 (referring to Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.1982)).

{44} Whether a tort committed by a tortfeasor is concurrent or successive can be dfetermined as a question of law. See Lujan, 120 N.M. at 425-26, 902 P.2d at 1028-29. The factors mentioned but not adopted by Lujan generally turn on the allegations of the parties, specifically, the - “alleged negligence” and the “causes of action,” and not necessarily on the evidence presented during trial. Id. Any one or more of the factors, we submit, may assist a trial court in determining whether a tortfeasor is concurrent or successive, under facts different from those present here and in Lujan. In some cases, as we previously observed, a trial court may not be able to determine whether two defendants are concurrent or successive tortfeasors before trial. Indeed, Defendants cite several cases in which the trial court was not presented with sufficient grounds to determine whether the damages were apportionable based on proximate cause. See Glomb ex rel. Salopek v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362, 1365 (1987) (finding that a “court can direct the apportionment of liability among distinct causes only when the injured party suffers distinct harms or when the court is able to identify ‘a reasonable basis for determining the contribution of each cause to a single harm,’ ” in a case involving indivisible injury at the hands of a babysitter and negligent parents (quoting Restatement (Second) of Torts § 433A(1) (1965))); Mathews v. Mills, 288 Minn. 16, 178 N.W.2d 841, 842, 846 (1970) (plaintiff involved in two almost simultaneous accidents); Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313, 1315-16, 1323-24 n. 4 (1990) (plaintiff suffered injuries from successive auto accidents). A law review note by Brady C. Pofahl, Tort Law-Original and Successive Tortfeasors and Release Documents in New Mexico Tort Law: Lujan v. Healthsouth Rehabilitation Corporation, 27 N.M.L.Rev. 697 (1997), discussing our Supreme Court’s opinion in Lujan, recognized the problem that might arise in some instances:

The Lujan decision creates two primary problems with regard to the distinction between concurrent and successive tortfeasors. First, an application of the five factors [that] the court used to distinguish between concurrent and successive tortfeasors may not always render a clear distinction between the two types of tortfeasors in many multiple injury fact patterns. Take for example the following: an original tortfeasor, in an automobile, hits a pedestrian who falls in the street and breaks his leg. A few seconds later, a speeding drunk driver crosses the median and hits the pedestrian in the same leg, possibly causing an enhanced injury to that leg. The end result is a single broken leg caused by two separate acts of negligence [that] may, or may not, be compared under the Lujan decision.

Id. at 707 (footnote omitted).

{45} Under Lujan, the trier of fact should apportion a plaintiffs damages between the original and successive tortfeasors, regardless of whether both are joined by the plaintiff. See Lujan, 120 N.M. at 426-27, 902 P.2d at 1029-30. This apportionment is not based on the comparative fault of each tortfeasor but based on the damages proximately caused by each separate act. See id. at 427, 902 P.2d at 1030. Under this concept of apportionment, if the plaintiff sues the successive tortfeasor, that party is responsible to the plaintiff for the entirety of an enhanced injury but is not responsible for any harm caused before the enhancement. See id. ■

{46} In Lujan, the Court declined to apply Bartlett comparative-fault analysis to successive tortfeasors. See Lujan, 120 N.M. at 426, 902 P.2d at 1029. Lujan refused to extend to successive tortfeasors the benefit of the Bartlett exception to joint and several liability. A successive tortfeasor’s liability for the enhancement to the original injury is not accurately described as joint and several. Successive tortfeasors are simply liable for the entire enhancement if proximately caused by their negligence. See Lujan, 120 N.M. at 426-27, 902 P.2d at 1029-30.

{47} Similarly, NMSA 1978, § 41-3A-1(A) (1987), enacted after Bartlett and entitled “Several [Liability,” abolished joint and several liability “[i]n any cause of action to which the doctrine of comparative fault applies.” It also prohibits the application of comparative fault to successive tortfeasors:

Where a plaintiff sustains damage as the result of fault of more than one person which can be causally apportioned on the basis that distinct harms were caused to the plaintiff, the fault of each of the persons proximately causing one harm shall not be compared to the fault of persons proximately causing other distinct harms. Each person is severally liable only for the distinct harm which that person proximately caused.

Section 41-3A-1(D) (emphasis added). Under this statute, the fault of a successive tortfeasor “shall not be compared” to the fault of an original tortfeasor. Instead, the successive tortfeasor remains liable to the plaintiff for the entire enhancement that person proximately caused.

{48} Although Lujan did not rely on Section 41-3A-1, the case accurately limited an original tortfeasor’s rights against the successive tortfeasor to indemnification, not contribution based on comparative fault. See Lujan, 120 N.M. at 427, 902 P.2d at 1030.

{49} In summary, under Lujan, damages should be apportioned between successive tortfeasors based upon proximate cause. Them respective liability should not be dependent upon their comparative fault, as with concurrent tortfeasors. In a medical malpractice context, the fault of the original tortfeasor, as opposed to the harm caused, does not play a part in the jury’s consideration of the successive tortfeasor’s liability to the plaintiff. Those determinations made in Lujan are controlling in our consideration of what occurred before and during the trial in this case.

{50} The jury was properly presented with evidence detailing the extent of the patient’s injuries at the hands of the assailant as part of the relevant medical evidence for determining the proximate cause of his death, alleged to be Defendants’ fault. But evidence of the assailant’s fault, that is, his criminal liability or his negligence, was irrelevant and improper to a determination of Defendant’s liability by the jury. See § 41-3A-1(D); Lujan, 120 N.M. at 426-27, 902 P.2d at 1029-30. Obviously, once it could be determined that Defendants were successive and not concurrent tortfeasors, the trial court must consider and give to the jury the proper instructions on successive tortfeasor and not concurrent tortfeasor liability, as occurred at trial here.

{51} The trial court’s denial of Plaintiffs motion erroneously permitted Defendants’ strategy to introduce the assailant’s comparative negligence, indeed, his negligence per se, to the jury. The court thus essentially allowed Defendants to present a comparative negligence case and to successfully argue, based on the assailant’s criminal conviction beyond a reasonable doubt, that the assailant, not Defendants, proximately caused the patient’s death. Indeed, the opening arguments of both Defendants stressed the assailant’s criminal and civil liability for the entire injury, including the patient’s death. This irrelevant evidence of the assailant’s fault erroneously distracted the jury from properly examining Defendants’ causation without comparisons to the assailant’s negligence, as required by Lujan.

{52} Defendants rely on Martinez, 107 N.M. at 271, 755 P.2d at 609, for the proposition that they were entitled to offer evidence of the assailant’s negligence to allow the jury to compare the percentage of total liability among the three parties. In Martinez, the plaintiff sued a physician for malpractice after suffering injuries at the hands of a non-party driver of an automobile. Martinez held that the jury could not apportion fault between the driver and the physician without presenting, evidence of the driver’s negligence, suggesting that the physician should have joined the driver. See id. Martinez strongly implied that “if the negligence of the pickup truck driver had been established, the jury properly could have apportioned his fault with that of the treating physician and then could have reduced the physician’s liability for the plaintiffs enhanced injury in proportion to the driver’s fault.” Lujan, 120 N.M. at 424, 902 P.2d at 1027 (citing Martinez, 107 N.M. at 271, 755 P.2d at 609).

{53} In light of the later ruling in Lujan and Section 41-3A-1, which statute was not in effect at the time Martinez was filed, we decline to apply the implied holding of Martinez. In Martinez, this Court apparently assumed that Bartlett abolished joint and several liability for both concurrent and successive tortfeasors and that the fault of successive tortfeasors should be compared to determine their respective liability to the plaintiff. See Martinez, 107 N.M. at 270, 755 P.2d at 608. To the extent Martinez could be read to have held that the physician’s liability for the plaintiffs enhanced injury could be reduced in proportion to the driver’s fault, we conclude that such holding in Martinez was superseded and modified by our Supreme Court in Lujan and by Section 41-3A-1.- See Pofahl, 'swpra, at 697 (In ruling that successive tortfeasors are liable only for the distinct injuries that they cause, “[Lujan] overruled the suggestion in Martinez ... that successive tortfeasors could apportion fault for the causally distinct second or successive injury with original tortfeasors.” (Footnote omitted)).

{54} We conclude that the trial court erroneously failed to determine as a matter of law that Defendants were successive tortfeasors and not concurrent tortfeasors. This error allowed Defendants to improperly inject issues of the original tortfeasor’s comparative negligence and negligence per se to the jury during the entire course of the trial.

{55} In addition to the analysis previously discussed, we offer the following guidelines for trial courts to observe. In the event that a trial court can determine as a matter of law before trial that a plaintiffs case presents a successive-tortfeasor-liability question, after considering the five factors enumerated in Lujan, the court should instruct counsel to refrain from arguing a comparative-negligence theory during trial involving the original tortfeasor(s). If the trial court is unable to make such a determination before trial, the court should nevertheless instruct counsel not to argue a comparative-negligence theory to the jury. If evidence is adduced during trial to permit the trial court to make such a determination one way or the other (concurrent tortfeasor liability versus successive tortfeasor liability) as a matter of law, the trial court should submit the appropriate instructions to the jury on the proper tortfeasor liability theory founded on the evidence presented and permit counsel to argue the evidence and applicable liability theory accordingly during closing arguments.

{56} In our view, there are two important differences between our approach and the approach taken by the dissent. The first of these is that the thrust of our focus is in the trial court’s denial of Plaintiffs motion to preclude Defendants from arguing comparative fault by the assailant in a case that involved Defendants as successive tortfeasors. The dissent, on the other hand, applies its rationale and discussion of Restatement (Third) of Torts: Apportionment of Liability, § 50, to the production of evidence required of a plaintiff attempting to show that plaintiffs injuries are divisible. The dissent then, does not address the problem of a party prematurely injecting a theory of liability that is not warranted by the facts. We believe that if the facts of a particular case warrant the argument by either a plaintiff or a defendant that the theory of liability is one of successive and not concurrent tortfeasor liability, or vice versa, then the party arguing such liability has the burden of adducing evidence not only of the negligence of the tortfeasor but of the divisibility or indivisibility of the injury. It is a matter of proof for the factfinder’s consideration and required of the party asserting the liability theory. Proper instructions to a jury in that regard will assure that a party’s theory is properly considered by the jury. The ultimate effect of the trial court’s denial of Plaintiffs motion, which as we noted previously, we view as a motion in limine, was to inject a false issue in the trial from which there was no retreat. The error was later compounded when the trial court instructed the jury on the law of concurrent tortfeasor liability, a theory clearly not applicable under Lujan. The jury, as trier of fact, would ultimately decide the question of whether there was a failure of proof. Plaintiff was unable to present her theory without the taint of comparative negligence injected by Defendants. Consequently, the dissent’s attempt to reject Plaintiffs theory of successive tortfeasor liability because of an asserted failure of proof is, in our view, a red herring.

{57} This brings us to the second important difference between the dissent’s and our approach. We believe, on the one hand, that our interpretation of Lujan’s holding is correct. Likewise, we believe that, based on the facts in Lujan and the facts in this appeal, we are bound by our Supreme Court’s holding. The dissent, on the other hand, in applying its own rationale and the pronouncements of Section 50 of the Restatement, apparently takes issue with Lujan’s clear holding, as well as its rationale. Additionally, the dissent not only attempts to distinguish Lujan factually, but chooses to criticize the basis of its holding. We believe that if Lujan is to be revisited, in light of the Restatement’s recent pronouncement under Section 50, it should be our Supreme Court, not our Court, that should do so. We should add, however, that Section 50, as interpreted by the dissent, is not the law in New Mexico.

{58} The dissent correctly notes that the fundamental issue is one of apportionment of liability for damages where harm is created by multiple causes. The causes may operate simultaneously (or nearly so) or they may be separated by a significant amount of time. We should note that, in this regard, it is not of any consequence under the facts in this appeal that the alleged medical malpractice took place only minutes or hours after the original tort and that the alleged malpractice in Lujan occurred a month or so later. The divisibility of the alleged injury in both cases is clear. We believe Lujan provides a reasonable approach to the issue in the type of factual scenario we have here — an action for medical malpractice allegedly occurring during treatment of a prior injury. For that reason, as we previously noted, given the similarity of our facts to those in Lujan, we view Lujan as controlling.

{59} To some extent, it appears that the dissent does not directly question our interpretation or application of Lujan. Rather, it argues that Lujan’s approach to the problem of apportionment is incorrect and suggests a completely different, perhaps radical, analysis. It suggests, for example, that the starting point of the analysis should be whether the injury is factually divisible by cause. It thus proposes that the analysis should begin at the end — the injury — then proceed backwards to the injury’s constituent causes, if possible. If the injury cannot be divided as a factual matter into its distinctive causative components, the dissent proposes, it should be treated as indivisible. Indivisibility carries with it the consequence of potentially imposing full liability for the injury on any one of the causative agents. Responsibility can be divided or compared, but it is unclear whether the division is done on the basis of fault and culpability or on some other measure.

{60} New Mexico’s comparative negligence system relies on the presumption that fault translates to — or is a reasonable proxy for — causation. It does not concern itself directly with causation, at least with regard to the factual division of an injury. The dissent’s proposal, we submit, has the potential of overturning or altering this presumption and even our negligence system entirely. We see no need to complicate even further our system of tort law to address a problem that has been resolved in a reasonable manner by Lujan.

{61} We also note that the Restatement (Third) does not suggest that Section 50, as interpreted by the dissent, is the only solution to the problem of apportionment between “ordinary” tortfeasors and medical doctors. See Restatement (Third) section 7, cmt. e, ill. 2 (assuming that the torts of automobile drivers and medical doctors cause only a portion of the victim’s damages, thus creating divisible injuries). The illustration echoes the approach taken by Lujan without requiring the multiple factual investigations described by the dissent. It is even unclear under Section 50 whether a plaintiff would have any responsibility to prove divisibility as such when there is no question of his or her own comparative negligence. According to Section 50, comment g., injuries are indivisible when “all legally culpable conduct of the plaintiff and every tortious act of the defendants and other relevant persons caused all the damages.” We should note that Lujan addressed the issue in this context by essentially holding that, if the medical malpractice causes injury, that conduct and its consequences are separate from the original injury. See Restatement, section 7, cmt. m.

{62} Finally, the dissent questions the viability of the indemnification principles addressed in paragraph 17 of Lujan. We merely point out that the discussion in paragraph 17 was not necessary to Lujan’s holding and is thus dicta. The potential for indemnification of the original tortfeasor in this case is nonexistent. It should not be used as a straw man argument against the applicability of Lujan to the facts in this appeal.

C. The Trial Court Afforded Plaintiff an Evidentiary Hearing on Its Motion for a Change of Venue, and Its Denial of the Motion Was Not an Abuse of Discretion

{63} Change of venue is governed by NMSA 1978, § 38-3-3 (1965), under which a party may move to change venue to a different county for sufficient cause stated in the affidavit of the party, his or her agent, or attorney. Upon motion of a party, “the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or overrule said motion.” NMSA1978, § 38-3-5 (1929). Under this rule, if a party moves for a change of venue and submits an affidavit in support of the motion stating that a fair trial cannot be held on account of local prejudice, the court shall allow the movant to present evidence in support of this allegation and then determine the merits of such allegations. See Schultz v. Young, 37 N.M. 427, 430, 24 P.2d 276, 278 (1933). In Schultz, our Supreme Court reversed the trial court’s decision to refuse additional evidence upon being presented with a mere averment by counsel’s affidavit. See id. at 430-31, 24 P.2d at 278.

{64} Denial of a motion to change venue is reviewed for an abuse of discretion. See State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991). The trial court must receive evidence upon which it can make findings of fact. See McCauley v. Ray, 80 N.M. 171, 175, 453 P.2d 192, 196 (1968). If the record lacks substantial evidence, the trial court has abused its discretion. See id. at 176-77, 453 P.2d at 197-98.

{65} In support of her motion for a change of venue, Plaintiff submitted her counsel’s affidavit and the affidavit of a jury consultant. Both affidavits contained numerous averments of fact regarding the previous conduct of the jury during voir dire and of the jury pool in general at the time of the first trial attempt in July of 1997. The court reviewed these affidavits but refused Plaintiffs request to present live testimony in support of her motion. Plaintiff argues that, under Schultz, these affidavits were merely procedural requirements for an evidentiary hearing and not evidence by themselves. Plaintiff thus contends that the trial court should have allowed her to present live testimony in addition to the affidavits.

{66} We disagree with Plaintiffs reading of Schultz. The Court in Schultz considered an affidavit by the movants stating their belief that they would not be able to secure a fair trial in the county where the cause was pending. See Schultz, 37 N.M. at 428, 24 P.2d at 277. Certainly, the court needs to hear sufficient evidence upon which to base a ruling. See McCauley, 80 N.M. at 175, 453 P.2d at 196. It did so in this case by considering the affidavits of counsel and the jury consultant. Had Plaintiff only submitted an affidavit of her counsel containing merely a general averment that Plaintiff could not receive a fair trial in Quay County, as occurred in Schultz, the trial court may have been required to allow additional evidence in support of or in opposition to the motion, which presumably could have consisted of the jury consultant’s affidavit as well as other evidence. See, e.g., V.P. Clarence Co. v. Colgate, 115 N.M. 471, 472, 853 P.2d 722, 723 (1993) (counsel’s arguments are not evidence). We believe, however, that the affidavits of either Plaintiffs counsel or the jury consultant constituted sufficient evidence on which to base a ruling. Counsel’s factual averments in her affidavit are evidence, not mere arguments. Similarly, the jury consultant’s affidavit detailed the consultant’s sworn personal observations of the various jury members and thus also constituted evidence on which the trial court could base a ruling. Dr. Samson’s counsel also submitted his affidavit as evidence opposing the motion.

{67} We are thus presented with the narrower question of whether the trial court abused its discretion by limiting evidence to these three affidavits and not considering “live testimony.” Generally, a trial court has the discretion to exercise reasonable control over the presentation of cumulative or repetitious evidence in order to prevent needless delay and inconvenience and to expedite matters. See Rule 11-611(A) NMRA 1999; see generally Pierce v. Albertson’s Inc., 1996-NMSC-009, ¶ 15, 121 N.M. 369, 911 P.2d 877. A review of the two affidavits offered by Plaintiff in support of her motion indicates to us that both of them appeared to comprise the entire factual basis for Plaintiffs motion, that each affidavit included all relevant facts known to each affiant, and that additional testimony would be redundant. The trial court was also free to impute greater credibility to the affidavit of Dr. Samson’s counsel.

{68} We therefore conclude that the trial court did not abuse its discretion in limiting the evidence to be considered by it to what was contained in the affidavits submitted by the parties. Our disposition of this issue does not preclude either party from requesting a change of venue on remand for a new trial.

III. CONCLUSION

{69} We hold that the trial court abused its discretion in denying Plaintiffs motion to reopen discovery for the purpose of adding Ms. Griner and Dr. Hanosh as witnesses. For this reason, we reverse the trial court’s judgment and remand for a new trial and further proceedings consistent with this opinion. We also hold that the trial court should have granted Plaintiffs motion to exclude evidence of the assailant’s comparative fault and negligence per se from consideration by the jury and submitted appropriate instructions to the jury on Plaintiffs successivetortfeasor-liability theory. We conclude, however, that the trial court did not abuse its discretion in denying Plaintiffs change of venue motion. Because of our disposition, wé need not address Plaintiffs remaining issue and arguments. Plaintiff is awarded costs on appeal.

{70} IT IS SO ORDERED.

BUSTAMANTE, J., concurs. HARTZ, J., concurs in part, dissents in part.