Wallbro v. Nolte

511 P.3d 348

Elizabeth WALLBRO, Personal Representative of the Estate of Mary Y.C. Han, Deceased, Petitioner-Appellee/Cross-Appellant,

v.Kurt NOLTE, M.D., in his official capacity as Chief Medical Investigator of the Office of the Medical Investigator, Respondent-Appellant/Cross-Appellee.

No. A-1-CA-37827

Court of Appeals of New Mexico.

Filing Date: March 15, 2021

Certiorari Granted, April 19, 2022, No. S-1-SC-38773

Serra & Garrity, P.C., Diane Garrity, Santa Fe, NM, Vega Lynn Law Offices, LLC, Rosario D. Vega Lynn, Albuquerque, NM, for Appellee

Melendres & Melendres, P.C., Paul Melendres, Linda Melendres, Albuquerque, NM, for Appellant

MEDINA, Judge.

{1} In these consolidated appeals, Kurt Nolte, M.D., in his official capacity as Chief Medical Investigator of the Office of the Medical Investigator (Respondent) appeals the district court's grant of a writ of mandamus directing Respondent to amend its manner of death determination on a death certificate for decedent Mary Y.C. Han (Han). Elizabeth Wallbro (Petitioner), sister and personal representative of the Estate of Han (Han Estate), appeals the district court's denial of attorney fees pursuant to the issuance of the writ of mandamus. We reverse the district court's grant of a writ of mandamus and affirm its denial of attorney fees.

BACKGROUND

{2} In November 2010, personnel from the Albuquerque Fire Department and officers of the Albuquerque Police Department (APD) responded to a call and located the body of Han in the driver's seat of a vehicle inside the garage of her home. After securing the garage, officers entered the house to ensure no other individuals were inside and immediately noticed strong vehicle exhaust fumes throughout.

{3} The officers then spoke with Paul Kennedy who discovered Han inside her vehicle and was still at the scene when they arrived. After speaking with Mr. Kennedy, Officers took a visual inventory of the scene and then called a field investigator¹ and Respondent. Before the field investigator or Respondent arrived on scene, two other officers arrived and began walking through the house and garage. More individuals—including high ranking APD officers and civilians—arrived throughout the course of the field investigation. In total, approximately fifty to sixty officers and civilians were on scene and moving between the house and garage during Respondent's investigation.

{4} After completing its field investigation, Respondent conducted an autopsy and concluded that Han's manner of death was suicide caused by inhalation of carbon monoxide in the enclosed garage. On December 23, 2010, Dr. Ross Reichard, the forensic pathologist who performed Han's autopsy, certified that "[on] the basis of examination and/or investigation, in [his] opinion," the manner of Han's death was suicide. Wallbro, acting as personal representative of the Han Estate, disputed Respondent's manner of death determination and filed a petition for a writ of mandamus requesting in part and in the alternative that the district court:

A. Issue a writ of mandamus requiring [Respondent] to conduct a proper, fair, impartial and complete investigation into the cause and manner of the death of ... Han;

B. Order that the cause and manner of death of ... Han be reopened, reexamined and reevaluated

.... [or]

D. Order that the death certificate be amended to "undetermined" as the manner of the death of ... Han.

{5} The district court did not issue a writ. Instead, the court issued a summons. Respondent in turn filed a motion to dismiss asserting that Petitioner failed to demonstrate "(1) ... standing to bring this action; (2) [that] Respondent has a clear legal duty to perform what is requested; (3) the performance sought is ministerial and not discretionary; and (4) a writ is an appropriate remedy." Petitioner filed a response to the motion to dismiss and Respondent filed a reply.

{6} The district court denied Respondent's motion to dismiss, finding that: (1) "Petitioner does not have a plain, speedy and adequate remedy in law"; (2) "Petitioner is beneficially interested based on the allegations contained in the [w]rit"; and (3) "there exists a material question and a mixed question of law and fact as to what ... Respondent's discretionary acts are as raised in the [p]etition."

{7} Respondent subsequently filed a motion for summary judgment, asserting that mandamus cannot lie because there were no material issues of fact in dispute regarding the discretionary nature of the relief sought by Petitioner. The district court denied the motion, and in its order stated that questions regarding the nature of Respondent's duty and whether there exists an adequate remedy of law were issues of fact for trial. The district court further stated that Petitioner's experts’ opinions on Respondent's protocols and whether the protocols were followed during Han's autopsy were also disputed issues of fact for trial.

{8} The district court held two evidentiary hearings on the petition. The purpose of the first hearing was to determine whether Respondent's "actions or duties raised in the [p]etition [were] mandatory and/or ministerial or whether they [were] discretionary." Six witnesses testified during the first hearing including Dr. Werner Spitz, Dr. David Williams, Dr. Kris Sperry, Dr. Ross Zumwalt, Dr. R. Ross Reichard by deposition, and Respondent.

{9} Petitioner presented the testimony of Dr. Spitz, who was accepted as an expert in forensic pathology. Dr. Spitz testified that the word "opinion" in the certified statement on Han's death certificate meant that it was "the opinion of the person that sign[ed] this document ... what he or she believed, to the best of their knowledge, based on ground rules, medical and forensic, to be the cause and manner of death." Dr. Spitz noted that there were deficits in the investigation such that, in his opinion, Han's manner of death should have been classified as undetermined. Of great significance to Dr. Spitz was Respondent's failure to collect and analyze Han's computer.² According to Dr. Spitz, "many times" people leave suicide notes or other information on their computers.

{10} Dr. Williams testified as an expert in emergency medicine and carbon monoxide toxicity as it applies to the clinical analysis of a manner or cause of death; he conceded, however, that he lacked the credentials to offer an opinion as to autopsy procedure. Dr. Williams explained why, after meeting with Respondent, he made a formal appeal of the Office of the Medical Investigator's (OMI's) findings in this case. Specifically, he stated that he found it odd that the autopsy did not reveal tissue or organ damage given the level of carbon dioxide in Han's system. Dr. Williams also described an instance in which he identified the manner of death on a death certificate as accidental and natural and affirmed that he refused OMI's request to delete "accidental" because it was his medical opinion that both applied. In addition, he confirmed that he would refuse a judicial directive to change a manner of death determination if it was inconsistent with his opinion.

{11} Dr. Sperry, accepted by the district court as an expert in forensic pathology, disagreed with OMI's determination of Han's manner of death. Specifically, Dr. Sperry took issue with deficits in the investigation such as the lack of investigation into Han's computer. He explained that forensic pathology relies on parallel investigations to garner information beyond what is found through autopsy and toxicology. Still, Dr. Sperry agreed that a forensic pathologist must use discretion when determining manner of death and that cause and manner of death are statements of opinion.

{12} In addition to the experts testifying at trial, the deposition testimony of Dr. Reichard was admitted as an exhibit. Dr. Reichard testified that he performed Han's autopsy and that his determination of suicide as the manner of death was a matter of opinion rendered to a reasonable degree of medical certainty.

{13} At the conclusion of the first hearing, the district court entered an order in which it concluded in part that Petitioner is a beneficially interested party because the estate has a quasi-due process right in Han's body;³ consistent with its regulations, Respondent had a nondiscretionary duty to issue a death certificate for the cause and manner of a person's death; and "[a]t the very least [Respondent] has a ministerial duty to correctly analyze and determine the cause of death based on alleged facts of death." Having found that Respondent's determination of manner of death is a ministerial act, the district court held a second hearing to determine whether Respondent determined the manner of death in accordance with its ministerial duties.

{14} During the second hearing, APD officers described the investigative scene and testified that members of the public as well as other high ranking APD and city officials inundated the scene. Testimony revealed that some evidence was not collected during the investigation and that the scene was otherwise compromised.

{15} Based on the evidence at both hearings, the district court concluded that Respondent acted arbitrarily and capriciously and not in accordance with law because substantial evidence did not support its conclusion as to manner of death and therefore Respondent abused his discretion. In concluding that Respondent's determination of manner of death is a ministerial act, the district court relied on NMSA 1978, Section 24-14-21(A) (1981), of the Vital Statistics Act to find that Respondent had a duty to "apply the facts surrounding the death of Ms. Han in a manner and in accordance with evidentiary requirements." The district court then found that the spoliation of evidence at the scene impacted Respondent's ability to satisfy the evidentiary requirement of Section 24-14-21(A).⁴ The district court applied the standard of review for administrative decisions and found that Respondent abused its discretion...