{ "id": 2764435, "name": "Georgia Ann MANTZ and Joseph C. Mantz, Plaintiffs-Appellants, v. A. H. FOLLINGSTAD, Defendant-Appellee", "name_abbreviation": "Mantz v. Follingstad", "decision_date": "1972-11-22", "docket_number": "No. 954", "first_page": "473", "last_page": "483", "citations": [ { "type": "official", "cite": "84 N.M. 473" }, { "type": "parallel", "cite": "505 P.2d 68" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "71 N.M. 480", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347780 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0480-01" ] }, { "cite": "81 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359801 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0291-01" ] }, { "cite": "259 Or. 54", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2108771 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/or/259/0054-01" ] }, { "cite": "80 N.M. 196", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356516 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0196-01" ] }, { "cite": "81 N.M. 723", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5367987 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0723-01" ] }, { "cite": "70 N.M. 439", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853555 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0439-01" ] }, { "cite": "81 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364153 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0307-01" ] }, { "cite": "76 N.M. 587", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503777 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0587-01" ] }, { "cite": "76 N.M. 735", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504809 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0735-01" ] }, { "cite": "102 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619054 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0054-01" ] }, { "cite": "82 N.E.2d 378", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "335 Ill.App. 572", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5018813, 5019735 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/ill-app/335/0572-01", "/ill-app/335/0572-02" ] }, { "cite": "72 N.M. 285", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853372 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0285-01" ] }, { "cite": "73 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5319859 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/73/0445-01" ] }, { "cite": "82 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335557 ], "weight": 3, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0352-01" ] }, { "cite": "22 L.Ed.2d 567", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 0 }, { "cite": "89 S.Ct. 1319", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1969, "opinion_index": 0 }, { "cite": "394 U.S. 965", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6289763, 6287940, 6290730, 6288270, 6289487, 6290398, 6290074, 6289118, 6288607 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/394/0965-06", "/us/394/0965-01", "/us/394/0965-09", "/us/394/0965-02", "/us/394/0965-05", "/us/394/0965-08", "/us/394/0965-07", "/us/394/0965-04", "/us/394/0965-03" ] }, { "cite": "403 F.2d 2", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2129169 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/403/0002-01" ] }, { "cite": "63 N.M. 460", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2778319 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/63/0460-01" ] }, { "cite": "352 F.2d 193", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 851314 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/352/0193-01" ] }, { "cite": "80 N.M. 573", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356210 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/80/0573-01" ] }, { "cite": "84 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772521 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/84/0038-01" ] }, { "cite": "70 N.M. 439", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853555 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/nm/70/0439-01" ] }, { "cite": "72 N.M. 285", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853372 ], "year": 1963, "opinion_index": 1, "case_paths": [ "/nm/72/0285-01" ] } ], "analysis": { "cardinality": 1090, "char_count": 30035, "ocr_confidence": 0.695, "pagerank": { "raw": 4.9114431164888e-07, "percentile": 0.9340005923125247 }, "sha256": "1fea659884274af26b1677f4f2fddfea11cdb5430639936af6c74a1b596711d8", "simhash": "1:99cbd634f2525c7a", "word_count": 4871 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COWAN, J., concurs.", "WOOD, C. J., specially concurring." ], "parties": [ "Georgia Ann MANTZ and Joseph C. Mantz, Plaintiffs-Appellants, v. A. H. FOLLINGSTAD, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nPlaintiffs appeal from a judgment for defendant after jury verdict. The issues submitted to the jury were whether defendant departed from certain ' accepted standards of medical practice, limited to disclosing information. Other claims for relief were disallowed by the trial court.\nPlaintiffs claim six grounds for reversal. The trial court erred: (A) In ignoring a pre-trial order which caused surprise and prejudice to plaintiffs. (B) In its application of the statute of limitations. (C) In disallowing several of plaintiffs\u2019 theories. (D) By undue restriction of plaintiffs\u2019 cross-examination of a doctor. (E) By denial of a motion for a new trial. (F) In taxing certain costs in favor of defendant.\nWe affirm the judgment.\nA. Plaintiffs Claim the Trial Court Ignored the Pre-trial Order, and Tried the Case on the Pleadings in a Disorderly and Confusing Manner to the Surprise and Prejudice of Plaintiffs.\nWe disagree. Plaintiffs\u2019 complaint, filed September 5, 1969, consisted of 37 paragraphs subdivided into one cause of action with four counts, and a second and third cause of action adopting previous allegations by reference and adding others.\nIn determining claimed error on this appeal, we shall disregard the pleadings because pleadings are superseded by the pre-trial order. The pre-trial order becomes the pattern governing the lawsuit. Case v. Abrams, 352 F.2d 193 (10th Cir. 1965). It became the law of the case. Johnson v. Citizens Casualty Company of New York, 63 N.M. 460, 321 P.2d 640 (1958). This does not prevent the trial judge from changing his mind about applicable law to prevent perpetuating \u00e9rror rather than facilitating the trial of the lawsuit on the genuine issues of fact and the law of the case. Lumbermens Mutual Casualty Company v. Rhodes, 403 F.2d 2 (10th Cir. 1968), cert. den. 394 U.S. 965, 89 S.Ct. 1319, 22 L.Ed.2d 567 (1969). Plaintiffs\u2019 legal theories for liability stated in the pre-trial order will be considered.\nOn October 29, 1971, a pre-trial order was made and entered pursuant to \u00a7 21 \u2014 1\u2014 1(16), N.M.S.A.1953 (Repl. Vol. 4). No objections or exceptions or admissions were made. Plaintiffs did not state any allegations of their complaint nor any of their factual contentions. Thereafter, no motion was made to modify the order. Trial began three days later, on November 1, 1971.\nThe pre-trial order, insofar as the plaintiffs\u2019 claims are concerned, stated:\nI.NATURE OF CLAIM:\nPlaintiffs\u2019 claims herein arise out of medical treatment of Plaintiff, Georgia Mantz, by Defendant who was the treating physician for a period of approximately ten years. The specific claims of this action arose during the period of treatment from approximately September, 1965, to February, 1969. The legal theories of each party as well as each party\u2019s contended facts are set forth below.\n******\nIn the pre-trial order, the following was stated:\nIII. CONTESTED FACTS\nPlaintiffs contend that the doctors in Las Vegas were negligent, and failed to obtain a proper informed consent for that surgery.\nPlaintiffs contend that Defendant\u2019s removal of her remaining breast was unnecessary, that Defendant failed, neglected and refused to explain to Mrs. Mantz that techniques were available to determine if the lump in her remaining breast was cancer before removing the breast and to explain to her about the alternatives open to her and the factors bearing upon these alternatives, and that if Defendant had given Mrs. Mantz this information, she probably would not have consented to have the breast removed, and that Defendant should have given Mrs. Mantz this information so that she could make an informed decision in the matter. Defendant knew that Mrs. Mantz had been told by doctors that she could not take hormones because of her cancer.\nIV. PLAINTIFFS\u2019 CONTENTIONS\nIt is Plaintiffs\u2019 contention that the conduct of Defendant is actionable because Defendant:\n1. Failed to disclose the truth to his patient before undertaking surgery;\n2. Failed to obtain a proper history of his patient before undertaking surgery;\n3. Failed to disclose facts to the patient necessary to permit an informed consent to treatment on the part of the-patient;\n4. Failed to diagnose the patient\u2019s-menopausal symptoms and condition;\n5. Failed to prescribe hormone therapy (primarily estrogen) as soon as needed by the patient;\n6. Failed to use recognized procedures for the diagnosis and verification of cancer before operating on the patient\u2019s breast in 1965;\n7. Improperly diagnosed the patient\u2019s; condition as cancer in 1965;\n8. Failed to consult competent specialists about the patient\u2019s medical needs-she was incompetent to handle;\n9. Intentionally inflicted severe mental suffering and anguish upon Plaintiffs ;\n10. Misrepresented the patient\u2019s condition to Plaintiffs;\n11. Committed and [sic] assault and battery upon the person of the patient;\n12. Concealed the truth from Plaintiffs so as to destroy their causes of action against Defendant and against the doctors in Las Vegas.\nThe Plaintiffs\u2019 legal theories are: (a) medical malpractice; (b) breach of express or implied contract; (c) misrepresentation; (d) assault and battery; (e) misrepresentation [sic]; (f) fraudulent concealment; (g) intentional infliction of severe mental suffering or anguish; (h) interference with beneficial relations; (i) loss of consortium; (j) punitive damages (Plaintiffs contend that Defendant\u2019s conduct was willful or wanton and in reckless disregard of Plaintiffs\u2019 rights and that the circumstances were aggravated); (k) Loss of enjoyment and pleasures of life and society.\nPlaintiffs made no contention under medical malpractice that defendant \u201c \u2018departed from the recognized standards of medical practice in the community, or must have neglected to do something required by those standards.\u2019 \u201d Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971); Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964). This theory was not supported by any facts, contested or otherwise.\n? the beginning of trial, and in argument in brief in chief, plaintiffs claim the trial court ignored theories of fraudulent concealment, estoppel, continuing care and treatment, the discovery rule, and continuing tort. In the pre-trial order, none of these contentions were even mentioned, except fraudulent concealment, but this theory was not connected with medical malpractice or assault and battery.\nThe trial court dismissed the legal theories of medical malpractice and assault and battery because they were barred by the statute of limitations.\nThe trial court did not, under plaintiffs\u2019 contention, ignore the pre-trial order in ruling out medical malpractice and assault and battery as stated in the order.\nOn November 1, 1971, the case came on for trial. The trial court sought to understand the theory of each of four counts of the first cause of action, as well as the second and third causes of actions, in order to rule on the defense of the statute of limitations stated in the pre-trial order. The trial court wanted the theories of plaintiffs\u2019 complaint cleared for his own personal information. Due to the method used by plaintiffs in alleging 37 paragraphs of the complaint, this analysis by the trial court was justified. The trial court did not try the case on the pleadings in a disorderly and confusing manner.\nWe must remind trial lawyers that a claim for relief \u201cshall contain (2) a short and plain statement of the claim showing that the pleader is entitled to relief,\u201d that \u201ceach averment of a pleading shall be simple, concise and direct.\u201d [Emphasis added.] Section 21-1-1(8) (a), (e), supra. The word \u201cshall\u201d is mandatory. Section 1-2-2(I), N.M.S.A. (Repl.Vol. 1).\nB. The Trial Court did not Err in its Application of the Statute of Limitations.\nPlaintiffs claim the trial court erred in its application of the statute of limitations by dismissing certain of plaintiffs\u2019 theories for affirmative relief prior to the close of plaintffs\u2019 case. This argument is divided into five categories: (a) the dismissal of medical malpractice and assault and battery was premature; (b) the exclusion of evidence pertained to the remaining issues still in the lawsuit; (c) the trial court applied the same error to plaintiffs\u2019 argument to the jury; (d) the trial court repeated the same error in its jury instructions; (e) at the close of plaintffs\u2019 case, the trial court dismissed plaintiffs\u2019 cause of action for breach of contract because the gist of the action was one of personal injuries and was subject to the three year statute of limitations.\n(a) Dismissal was not Premature.\nThe trial court dismissed plaintiffs\u2019 claims of assault and battery and negligent medical malpractice at the beginning of trial because defendant removed Mrs. Mantz\u2019 right breast by a simple mastectomy on September 8, 1965, but the complaint was not filed until September 5, 1969, more than three years later.\nThese facts were admitted and not contested in the pre-trial order. All discovery had been completed by the time of the pre-trial order.\nThe law is clear that an action for injuries to the person by assault and battery and for negligent medical malpractice must be brought within three years after the accrual of the cause of action. Section 23-1-8, N.M.S.A.1953. In medical malpractice, this cause of action accrued at the time of the wrongful act causing the injury. The statute of limitations was not tolled during the period of medical treatment. Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963).\nWhere the facts are not disputed, the question whether the case is within the bar of the statute of limitations is one of law for the court. Pink v. Sarelas, 335 Ill.App. 572, 82 N.E.2d 378 (1948); Mobley v. Broome, 248 N.C. 54, 102 S.E.2d 407 (1958).\nThe general rule on \u201cquestions of law\u201d for the court also covers the above issue. \u201c[W]hen the evidence on an issue of fact tendered by the pleadings is undisputed, and the inferences to be drawn therefrom are not open to doubt by reasonable men, the issue is no longer one of fact to be submitted to the jury, but becomes a question of law.\u201d Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966).\nFurthermore, dismissal of medical malpractice was justified because the pretrial order did not state a claim for relief based upon standards of medical practice hereinabove mentioned.\nThe dismissal was not premature.\n(b)Exclusion of Evidence\nWe have reviewed the testimony excluded when defendant\u2019s objections were sustained. Plaintiffs preserve no exceptions to the trial court\u2019s rulings, made no offer of proof to preserve the claimed error, and did not identify or offer in evidence some claimed exhibits. This claim of error is not subject to review. Furthermore, the testimony referred to had no bearing on the remaining issues still in the lawsuit.\n(c)Plaintiffs Argument to the Jury\nPlaintiffs\u2019 argument to the jury, objections to which were sustained, had no bearing upon the remaining issues left in the lawsuit.\n(d)Jury Instructions\nPlaintiffs claim error on jury instructions in two respects: (1) that the jury was informed twice that \u201cthe only period of time at issue in this lawsuit is the three years immediately preceding September 5, 1969, the date when this lawsuit was filed;\u201d that this was repetitious and reversible error. It was not error because this repetition did not unduly emphasize any particular portion of the case. State v. Atchison, Topeka and Santa Fe Railway Co., 76 N.M. 587, 417 P.2d 68 (1966); (2) that plaintiffs\u2019 requested instructions dealing with tolling the statute of limitations were denied. The trial court did not err in denying the requested instructions. Instructions on tolling the statute would introduce a false issue in the case. They were properly denied. State v. Atchison, Topeka and Santa Fe Railway Co., supra; Bolen v. Rio Rancho Estates, Inc., 81 N.M. 307, 466 P.2d 873 (Ct.App.1970).\n(e)Dismissal of Count I on Breach of Contract\nIn the pre-trial order, one of plaintiffs\u2019 stated theories was \u201cbreach of express or implied contract,\u201d but under plaintiffs\u2019 contentions therein no mention is made of this theory. There were no admissions or stipulations that an express or implied contract existed. Defendant expressly contended \u201cdefendant made no contracts or warranties express or implied with or to the plaintiffs concerning the plaintiff\u2019s physical condition or as to the defendant\u2019s diagnosis, treatment or medical care of the plaintiff.\u201d This was sufficient upon which to dismiss plaintiffs\u2019 legal theory.\nThe record shows that after plaintiffs rested, and arguments were made, the trial court was convinced that the statute of limitations was a bar to any claim for personal injuries regardless of what it is called. It dismissed this claim.\nThis was clearly a claim for personal injuries growing out of surgery performed by defendant. In Chavez v. Kitsch, 70 N.M. 439, 374 P.2d 497 (1962), the court said:\nThe majority rule is well established, that where the action in its effect is one for the recovery of damages for personal injury, the statute of limitations for injuries to the person applies, even though the cause of action stated is ex contractu in its nature.\nPlaintiffs then claimed there was factual support for the contract theory.\nPlaintiffs stated no pertinent facts or contentions in the pre-trial order. They presented no evidence in their case in chief to support a contractual claim. During argument, at the close of plaintiffs\u2019 case, there was no mention of a contractual claim.\nThe trial court did not err in dismissing plaintiffs\u2019 claim for breach of an express or implied contract.\nNo error was committed in the application of the statute of limitations.\nC. The Trial Court did not Err on Withdrawing Theories Stated in Pre-trial Order.\nPlaintiffs claim the trial court erred on failure to instruct the jury on the following legal theories set forth in the pre-trial order: (1) assault and battery; (2) misrepresentation, and (3) intentional' infliction of severe mental suffering or anguish.\nPlaintiffs are entitled to jury instructions on all correct theories of their case which are supported by substantial evidence. Rogers v. Thomas, 81 N.M. 723, 472 P.2d 986 (Ct.App.1970).\nHowever, the legal theory of assault and battery was properly dismissed. No error can arise for failure to instruct on this legal theory.\nWe are confronted with legal theories of \u201cmisrepresentation\u201d and \u201cintentional infliction of severe mental suffering or anguish.\u201d\n(a) Misrepresentation\nPlaintiffs claim that defendant had a duty to tell plaintiffs the truth about Mrs. Mantz\u2019 condition, and that he failed to speak when he had a duty to speak, and that his silence led Mrs. Mantz to continue in her fear of dying of cancer.\nWe believe this legal theory was covered by the trial court\u2019s instruction No.l.\nTrial court\u2019s instruction No. 1 stated in part:\nThe plaintiffs claim that they sustained damages and that the proximate cause thereof was one or more of the following claimed acts of negligence of the defendant.\nDr. Follingstad departed from accepted standards of medical malpractice in failing to tell plaintiff, Georgia Ann Mantz, between September 5, 1966 and January, 1969, that in Dr. Follingstad\u2019s opinion, she did not have cancer when a radical mastectomy was performed upon her in Las Vegas Nevada, in June, 1964.\nPlaintiffs objected to instruction No. 1 and challenged it, but plaintiffs did not claim that the instruction omitted the legal theory of \u201cmisrepresentation.\u201d The trial court did not err in refusing plaintiffs\u2019 requested instructions on misrepresentation. Castillo v. Juarez, 80 N.M. 196, 453 P.2d 217 (Ct.App.1969); Williams v. Vandenhoven, supra.\n(b) Intentional Infliction of Mental Stiffening\nIn the pre-trial order, plaintiffs stated a legal theory of \u201cintentional infliction of severe mental suffering or anguish,\u201d and contended that the conduct of the defendant was actionable because defendant \u201cintentionally inflicted severe mental suffering and anguish upon plaintiff.\u201d No allegations of plaintiffs\u2019 complaint or factual contentions were set forth. In objection to instruction No. 1, plaintiffs did not claim that it omitted the theory of \u201cintentional infliction of mental suffering.\u201d\nThis is a new tort theory in New Mexico. Plaintiffs rely on Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28 (1971). In that case, plaintiff sued defendant, a doctor, for outrageous conduct which caused her severe emotional distress. The Supreme Court of Oregon held there was sufficient evidence to submit the case to a jury. The rule of law adopted was \u201cthat the conduct must be outrageous in the extreme\u201d and that the patient \u201cin fact suffered emotional distress as a result, and that it was severe.\u201d\nThis rule is a modification of 1 Restatement of Torts 2nd, \u00a7 46 (1965) :\n(1) One who by extreme and outrag'eous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the . other results from it, for such bodily harm.\n(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress\n(a) to a member of such person\u2019s immediate family who is present at the time, whether or not such distress results in bodily harm, or\n(b) to any other person who is present at the time, if such distress results in bodily harm.\nUnder Comment (c), it is stated that \u201cthe law is still in a stage of development, and the ultimate limits of this tort are not yet determined.\u201d\nComment (d), entitled \u201cExtreme and outrageous conduct,\u201d reads in part as follows :\nThe cases thus far decided have found liability only where the defendant\u2019s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by \u201cmalice,\u201d or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, \u201cOutrageous!\u201d\nAfter plaintiffs cited authority, plaintiffs concluded by saying:\nIn view of the authorities and facts proved, the theory of intentional infliction of mental suffering should have been submitted to the jury and failure to do so was reversible error. T Emphasis added.]\nWhat facts were proved arc not mentioned. We have searched the pre-trial order and plaintiffs\u2019 brief in chief, and find no facts which disclose that the defendant \u201cby extreme and outrageous conduct intentionally or recklessly\u201d caused plaintiffs \u201csevere emotional distress.\u201d\nWe find no merit in plaintiffs\u2019 contention that they were entitled to instructions on this legal theory.\nThe pre-trial order itself precludes any review of plaintiffs\u2019 claimed errors on their legal theories.\nD. There was no Undue Restriction on Plaintiffs\u2019 Cross-examination.\nPlaintiffs claim reversible error due to restrictions on cross-examination of a medical witness as follows :\nQ. I am going to ask you not to make that assumption, Doctor, because that is a question for the jury to decide.\nMR. SHAFFER: Your Flonor, I object to Counsel arguing.\nTHE COURT: Yes, that is argumentative, Mr. Turp\u00e9n.\nMR. TURPEN: I don\u2019t believe the witness is entitled to make that assumption.\nTHE COURT: You asked him a question, he has the right to answer it.\nPlaintiffs continued with questioning on \u201cassumption\u201d and the doctor answered. There was no restriction of plaintiffs\u2019 cross-examination.\nE. There was no Error in Denying Plaintiffs\u2019 Motion for a New Trial.\nPlaintiffs claim the trial court erred in denying a motion for a new trial on the ground that the verdict for defendant was not supported by substantial evidence. Plaintiffs based their claim on the matters set forth immediately above. This was not a sufficient basis upon which to demand a new trial. There was no abuse of discretion. Trinidad Industrial Bank v. Romero, 81 N.M. 291, 466 P.2d 568 (1970).\nF. Taxation of Costs\nJudgment was entered January 13, 1972. On May 25, 1972, the trial court over objection allowed a cost bill as follows:\n1. The defendant is allowed expert witness fees of $750.00, under N.M.S.A. 20-1-4 (1953 Comp.) [sic]\n2. All charges for transcripts of depositions, including original and copies of depositions, are allowed as proper costs, in the amount of $625.57.\n3. Fees for services of Subpoenas in the amount of $25.00 are allowed as proper costs.\nPlaintiffs claim that \u00a7 20-1-4, N.M.S.A.1953 (Repl.Vol. 4, Supp.1971), amended in 1971 to increase expert witnesses fees as costs from $150.00 to $750.-00, was not applicable because the action was filed in 1969. This claim has no merit because costs are taxed upon entry of judgment to the prevailing party, not at the time a complaint is filed. Section 21-1-1(54) (d), N.M.S.A.1953 (Repl.Vol. 4).\nWe might question the constitutionality of the 1971 Act because of the title to the Act, but this question was not raised in the trial court or in this court, and it is not subj ect to review.\nSection 21-1-1 (54) (d), supra, provides in part:\nExcept when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; .\nUnder this rule, the trial court is given a large measure of discretion in allowing costs. This includes the cost of depositions if the taking of the deposition was reasonably necessary even though not used at the trial. Davis v. Severson, 71 N.M. 480, 379 P.2d 774 (1963).\nThere are statutes also which allow the costs and expense of taking depositions, together with fees for witnesses, to be taxed as costs. Section 25-1-6 and \u00a7 25-1-7, N.M.S.A.1953.\nWe find no abuse of discretion in items two and three, supra.\nJudgment affirmed.\nIt is so ordered.\nCOWAN, J., concurs.\nWOOD, C. J., specially concurring.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "WOOD, Chief Judge\n(concurring in part and dissenting in part).\nPlaintiffs\u2019 first point on appeal is that the trial court ignored the pre-trial order and tried the case on the pleadings in a disorderly and confusing manner. During arguments to the court prior to the taking of evidence, reference was made to the pleadings. Reference could of course have been made to the pre-trial order but there is no way to determine what factual contentions are related to what legal theories in the pre-trial order. This relationship between factual claims and legal theories could be determined .by reference to the complaint.\nThe record clearly shows the trial court was. seeking to understand plaintiffs\u2019 contentions. References to the complaint in seeking such understanding did not amount to legal error. If, as plaintiffs now contend, the references to the complaint amounted to \u201cignoring\u201d the pre-trial order, such a contention was never clearly brought to the attention of the trial court.\nThe record does not support the claim that the case was tried on the \u201cpleadings\u201d and in a \u201cdisorderly and confusing\u201d manner. The case was tried on the theories remaining after the trial court dismissed certain claims on the basis of the statute of limitations. There was, at the beginning of the trial, some uncertainty as to what malpractice theories remained in the case after this ruling, but this uncertainty was cleared when evidence as to the remaining malpractice theories was admitted.\nThe record does not support plaintiffs\u2019 first point.\nThe second point is that the trial court erred in its application of the statute of limitations. Some factual references are necessary for an understanding of this contention. Mrs. Mantz had received treatment in Las Vegas, Nevada, in 1964. This treatment included a left radical mastectomy. This treatment was on the basis that she had cancer. Defendant performed a simple mastectomy on Mrs. Mantz\u2019 right breast in 1965. When pathological reports indicated the right breast was not cancerous (although other disease was reported), Mrs. Mantz was informed of that fact.\nSubsequent to the simple mastectomy, defendant caused certain records and reports of the Las Vegas surgery to be examined and formed the opinion that she had not had cancer' at the time of the Las Vegas treatment.\nDefendant did not inform Mrs. Mantz of his opinion (that she had not had cancer at the time of the Las Vegas treatment) until January, 1969. He disclosed his opinion to her when a question arose as to administering estrogen in treatment of a premenopausal condition.\nOne claim made against defendant was that of assault and battery in performing the simple mastectomy in 1965. Another claim alleged various items of malpractice in connection with the simple mastectomy. The trial court ruled that the three year statute of limitations applied. At the close of plaintiffs\u2019 case, the trial court directed a verdict in favor of defendant on still another claim' \u2014 that of breach of contract. It did so on the basis that plaintiffs\u2019 claim was for personal injuries and the three year limitation applied. The trial court\u2019s rulings were correct because the complaint was not filed until 1969. Roybal v. White, supra; Chavez v. Kitsch, supra.\nThe facts applicable to the statute of limitations claim were before the court at the time of its ruling. Thus, it was not premature. The trial court\u2019s rulings as to the exclusion of evidence, the instructions given and the scope of jury argument were consistent with its ruling on the statute of limitations question. Only one aspect of this ruling needs further comment.\nIn ruling that malpractice claims in connection with the simple mastectomy were barred by the statute of limitations, the uncertainty previously referred to arose. The malpractice claims dismissed were included in Count IV of the first cause of action. One of those claims was that defendant failed to disclose to Mrs. Mantz his opinion that she did not have cancer at the time of the Las Vegas treatment. This uncertainty was cleared when evidence on this claim was admitted and the issue was ultimately submitted to the\u2019jury.\nPlaintiffs\u2019 second point is without merit.\nPlaintiffs\u2019 third point is that the trial court erred in not submitting four of their theories of liability to the jury. The previous discussion answers the contention as to two of the theories \u2014 the assault and battey claim and the breach of contract claim. The remaining two theories are: misrepresentation and intentional infliction of mental suffering.\nThe factual basis for the \u201cmisrepresentation\u201d theory is that defendant had a duty to tell Mrs. Mantz the truth as to her condition; that he failed to do so; \u201c . and that his silence led appellant to continue in her fear of dying of cancer.\u201d Thus, the factual basis is defendant\u2019s nondisclosure of his opinion that Mrs. Mantz did not have cancer at the time of the Las Vegas treatment.\nThe authority relied on by plaintiffs is Maxey v. Quintana, 84 N.M. 38, 499 P.2d 356 (Ct.App.1972). That case held an action exists for \u201cnegligent misrepresentation;\u201d that the action is determined by the general principles of the law of negligence.\nThe majority opinion quotes the instruction that submitted to the jury the issue of defendant\u2019s liability for nondisclosure of his opinion. The instruction is based on the theory of negligence. The fact that the instruction did not contain the word \u201cmisrepresentation\u201d does not demonstrate error because the substance of the theory \u2014negligence by nondisclosure \u2014 was submitted to and decided by the jury.\nAs to the theory of intentional infliction of mental suffering, the authorities discussed in the majority opinion define the tort in terms of \u201cextreme and outrageous\u201d conduct. Assuming, but not deciding, this standard applies in New Mexico, the evidence was insufficient for submission of this claim to the jury.\nPlaintiffs\u2019 third point is without merit.\nPlaintiffs\u2019 fourth point is that their cross-examination of Dr. Floyd was unduly restricted. Because of the asserted \u201cundue restriction,\u201d plaintiffs claim their motion for a new trial should, have been granted. The answer is that the record does not show any restriction. There is no merit to \u2022this point.\nOn the basis of the foregoing, I agree with the result reached by the majority opinion on all issues except the point concerning costs. On fees for expert witnesses, \u00a7 20-1-4(B), N.M.S.A.1953 (Repl.Vol. 4, Supp.1971) allows a maximum of $750.-00. That section also limits the expert fee to one witness, absent findings of the court which are not here present. Compare Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825 (Ct.App.1969). Thus, the expert fee in this case is limited to that of one witness. It cannot be determined from the cost bill, the objections thereto, or defendant\u2019s response, what cost should be allowed for the \u201cone witness.\u201d Thus, I disagree with the majority opinion and would remand for a determination of the expert witness fee.\nI agree with the majority disposition of the deposition charges, since the bills submitted support the amount awarded.\nI disagree with the amount allowed for services of subpoenas because I can find no support in the record that these charges were incurred. Thus, I would disallow this amount.", "type": "concurring-in-part-and-dissenting-in-part", "author": "WOOD, Chief Judge" } ], "attorneys": [ ". Donald C. Turp\u00e9n, Turp\u00e9n, Hunt & Booth, Albuquerque, for appellants.", "Donald L. Jones, K. Gill Shaffer, Shaffer, Butt & Bass, Albuquerque, for appellee." ], "corrections": "", "head_matter": "505 P.2d 68\nGeorgia Ann MANTZ and Joseph C. Mantz, Plaintiffs-Appellants, v. A. H. FOLLINGSTAD, Defendant-Appellee.\nNo. 954.\nCourt of Appeals of New Mexico.\nNov. 22, 1972.\nRehearing Denied Dec. 19, 1972.\n. Donald C. Turp\u00e9n, Turp\u00e9n, Hunt & Booth, Albuquerque, for appellants.\nDonald L. Jones, K. Gill Shaffer, Shaffer, Butt & Bass, Albuquerque, for appellee." }, "file_name": "0473-01", "first_page_order": 629, "last_page_order": 639 }