(concurring in part, dissenting in part).
{71} I agree that a new trial is required because of the district court’s refusal to permit Plaintiff to call Penny Griner as a witness. This case is different from Reaves v. Bergsrud, 1999-NMCA-075, 127 N.M. 446, 982 P.2d 497. In that case we recognized that when a district court orders a deadline for disclosure of witnesses, particularly expert witnesses, the district court has broad discretion to refuse to grant relief from the deadline. See id. Trial judges must be permitted to control such matters to keep litigation from getting out of hand. But here, Plaintiff disclosed Griner as a witness before any deadline imposed by a court order. I hope that the combination of the opinions in Reaves and this case will encourage the district courts to set and enforce discovery deadlines.
{72} My disagreement with the majority concerns the discussion of successive (or, better, divisible) injuries. How should the courts deal with a claim by a person who suffers an injury caused by one tortfeasor and who then is allegedly further injured by a second tortfeasor? In the case on appeal, the patient was stabbed and then was allegedly subjected to medical malpractice causing his death. The question also arises when a person is injured by successive motor vehicle accidents, as in a chain-reaction crash, or when a person injured in a motor vehicle accident is then further injured because of defects in the vehicle, as when a seat , belt fails and the occupant is ejected from the vehicle.
{73} In my view, the proper approach is that set forth in Restatement (Third) of Torts: .Apportionment of Liability , § 50 (1999) (hereinafter Restatement), recently adopted by the American Law Institute, not the approach adopted by the majority. In particular, I would hold that a plaintiff is not entitled to instructions treating the plaintiffs injuries as divisible unless the plaintiff produces evidence showing what damages would have been suffered if the alleged “successive tort” had not occurred. In the present case, Plaintiff had the burden to prove what damages the patient would have suffered from the stabbing had there been no alleged malpractice. Although Plaintiff could probably produce that evidence on retrial, she did not do so at the first trial; therefore, the district court did not err in its instructions or other rulings on the issue of “successive tortfeasors.”
{74} It is not clear to me what approach has been adopted by the majority for determining when torts are successive torts. To decide the ■ case before us on appeal, the majority appears to say only that the facts here are like those in Lujan v. Heatthsouth Rehabilitation Corp., 120 N.M. 422, 426, 902 P.2d 1025, 1029 (1995), and therefore the tortfeasors must be treated as successive tortfeasors. In other words, the majority finds it unnecessary to discuss the controlling legal principles to resolve this appeal; the result in Lujan, in their view, compels their conclusion, regardless of what the reasoning was in Lujan. For other cases, however, the majority appears to endorse a five-factor test derived from Lujan. See ante at ¶44 (the factors may assist court “under facts different from those present here and in Lujan ”), ¶55 (courts should consider “the five factors enumerated in Lujan ”); see also ante at ¶ 44 (quoting 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, 707 (1997), which states that Lujan used the five factors “to distinguish between concurrent and successive tortfeasors”). Consequently, I should com: ment on the five-factor test as an alternative to the approach I would follow.
{75} The five factors are mentioned in one sentence in Lujan. See 120 N.M. at 426, 902 P.2d at 1029. Lujan took the list of factors from footnote 2 in William L. Prosser, Handbook of the Law of Torts § 46 (4th ed.1971). When one reads the footnote in its entirety and in the context of the paragraph to which it is attached, one may question whether the five-factor test is a useful way to approach the problem. The paragraph, together with footnote 2, states:
The terms “joint tort” and “joint tortfeasors” have been surrounded by no little uncertainty and confusion. There have been various attempts to define them, and to propose tests2 of one kind or another as to when this may be found -to exist. An examination of the multitude of cases in which they are to be found leads to the conclusion that they have meant very different things to different courts, and often to the same court, and that much of the existing confusion is due to a failure to distinguish the different ■ senses in which the terms are used, which often has had an unfortunate effect upon the substance of the law. Since a “joint tort” can have significance only in so far as it may involve some definite legal result, it is possible to approach the problem by distinguishing the various consequences which follow from it, and to indicate how far they are related, or unrelated, to one another.
2 Thus, the identity of a cause of action against each of two or more defendants; the existence of a common, or like, duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential; responsibility of the defendants for the same injuria, as distinguished from the same damnum. See 1 Cooley, Torts, 4th Ed.1932, 276-278; Clerk and Lindsell, Torts, 8th Ed.1929, 58; Brunsden v. Humphrey, 1884, 14 Q.B.D. 141, 147; Petcoff v. Pestoret Lawrence Co. [sic], 1913, 124 Minn. 531, 144 N.W. 474; Farley v. Crystal Coal & Coke Co., 1920, 85 W.Va. 595, 102 S.E. 265; The Koursk, [1924] P. 140.
(Footnote 1 omitted). I think it is fair to infer from the language of the passage that Dean Prosser himself was not endorsing the use of any of the listed factors. And the fact that all the authorities cited in the footnote predate the Federal Rules of Civil Procedure might raise a doubt about whether all the factors are relevant under current law. Lujan itself does not explain why any of the five factors is relevant (it introduces the list by saying merely that “courts have considered several other factors that are relevant,” 120 N.M. at 426, 902 P.2d at 1029), nor did the Lujan court purport to apply the five-factor test to the case before it.
{76} What I would take irom Prosser’s treatise is not a five-factor test but an admonition to focus on the particular context in which the issue of successive, concurrent, or joint tortfeasors arises. The context of this case is the determination of how to apportion damages among tortfeasors who are responsible for distinct causes of a plaintiffs damages.
{77} The most reasonable approach to the issue in this context is the approach taken by the Restatement. Section 50 states: Apportionment of Liability When Damages Can be Divided by Causation
(a) When damages for an injury can be divided by causation, the factfinder first divides them into their indivisible component parts. The factfinder then separately apportions liability for each indivisible component part [as provided elsewhere in the Restatement].
(b) Damages can be divided by causation when there is a reasonable basis for the factfinder to determine:
(1) that any legally culpable conduct of a party or other relevant person to whom the factfinder assigns a percentage of responsibility was a legal cause of less than the entire damages for which the plaintiff seeks recovery and
(2) the amount of damages separately caused by that conduct.
Otherwise, the damages are indivisible and thus the injury is indivisible. Liability for an indivisible injury is apportioned [as provided elsewhere in the Restatement].
{78} The approach of Section 50 is a pragmatic, functional approach. The purpose— the function — of a personal injury action is to award damages. Damages are divisible if, and only if, the evidence persuades the jury that the damages can be divided into separate components that resulted from distinct (although perhaps overlapping) sets of causes. For example, the victim may suffer some lost future income from an initial injury and further lost future income from an aggravation of the injury. Absent evidence that damages can be divided, the damages are indivisible. To be more precise, an element of damages (such as lost future income) is “divisible” into two components only if the evidence shows that (1) the element of damages has two or more proximate causes (say, cause A of the initial injury and the additional cause B of the later aggravation) and (2) the element of damages can be divided into two measurable components (the loss of future income caused by the initial injury and the further loss caused by the aggravation), each of which was proximately caused by distinct sets of causes (say, cause A for the initial injury and causes A and B for the aggravation). For those whose conduct caused a particular component of the damages, liability is apportioned in accordance with the jurisdiction’s rules regarding comparative responsibility. But one whose conduct was not a legal cause of the particular component of damages is not assigned any liability for that component.
{79} The Restatement approach avoids the confusion that can arise from use of the terms concurrent tortfeasors and “successive tortfeasors.” Those terms suggest focusing on the temporal relationship between separate causes of the plaintiffs injuries; such a focus can cause one to miss the real issue — whether the jury has a basis for dividing the damages between two different causes or sets of causes.
{80} The Section 50 approach is consistent with NMSA 1978, Section 41-3A-1(D) (1987). That provision states that when harms can be apportioned by cause, the jury should compare the fault of only those who proximately caused each harm.
{81} The Restatement approach also appears to be consistent with New Mexico precedent. In Lujan, 120 N.M. at 426, 902 P.2d at 1029, our Supreme Court quoted with apparent approval the following statement from Duran v. General Motors Gorp., 101 N.M. 742, 749-50, 688 P.2d 779, 786-87 (Ct.App.1983): “[A] claimant in an enhanced injury case must prove that the defective design caused injuries over and above those which otherwise would have been sustained, must demonstrate the degree of ‘enhancement’, and ‘must offer proof of what injuries, if any, would have resulted [in any event].’ ” (quoting Huddell v. Levin, 537 F.2d 726, 737 (3d Cir.1976)). In other words, a plaintiff can recover for enhanced injuries only by proving how the damages can be divided between those that resulted from the “original accident” and the additional damages resulting from the “second accident.”
{82} Perhaps in one respect the Restatement departs from Lujan and Duran. The above-quoted language from the New Mexico opinions could be read as saying that plaintiffs cannot recover anything from the successive tortfeasor if they fail to prove “what injuries, if any, would have resulted in any event.” If that were the case, then a victim of a motor vehicle collision who was thrown from the vehicle because of a defective seat belt could recover nothing from the manufacturer of the defective belt unless the victim could prove the damages that would have been suffered if the belt had been satisfactory. Section 50, however, would not necessarily require that result. If the defective seat belt is proved to be a proximate cause of the victim’s injuries,- but no evidence establishes what damages would have been suffered by the victim if the seat belt had been satisfactory, then the victim’s damages (and injuries) would be treated as indivisible. The jury would compare the responsibilities of any tortfeasors causing the crash with the responsibility of the seat belt manufacturer, and apportion the total damages accordingly.
{83} The Restatement approach, it should be noted, is neither pro-defendant nor pro-plaintiff. In any particular case it may be advantageous for the plaintiff or for the defendant to treat the damages as indivisible. In a defective-seat-belt case, the plaintiff would prefer that the damages be treated as divisible if (1) there would have been little damage suffered had the seat belt worked properly and (2) the tortfeasors who caused the accident were very negligent and under-insured. (If each tortfeasor were capable of paying the full damages, the plaintiff would not care how the damages were apportioned among them.) But the plaintiff would prefer that the injury be treated as indivisible if (1) most of the injuries would have occurred even if the seat belt had been satisfactory and (2) the tortfeasors causing the crash were barely negligent and underinsured. The seat belt manufacturer would generally have the opposite preference to that of the plaintiff. But the parties may be sufficiently uncertain regarding how the jury would view the evidence that both might, for example, prefer to take their chances on treating the injury as indivisible. Of course, a party who wishes the damages to be treated as divisible can always put on evidence that would permit such a division. The Restatement adopts the sensible approach that “[a] party alleging that damages are divisible has the burden to prove that they are divisible.” Restatement, supra, § 50 cmt. h at 459. (Contrary to the majority’s suggestion, see ante, ¶ 61,1 do not read the Restatement as indicating that the plaintiff does not bear this burden when the plaintiff was not negligent or otherwise at fault.)
{84} Turning to the facts of the case before us, it may be useful to discuss how Section 50 would divide damages, assuming that Defendants committed malpractice and that all facts regarding the patient’s injuries are resolved by the jury. I will not attempt to catalogue all possible elements of damages that could be recovered, but among them would be medical expenses, lost future earnings, and pain and suffering. First, Plaintiff could recover from Moses Griego, the assailant. At the least, Plaintiff could recover from Griego the damages the patient would have suffered if Defendants had not committed malpractice. The patient, I will assume, would have lived if there had been no malpractice. But the patient certainly would have incurred medical expenses — for treatment at the time of the stabbing, and perhaps also over future years. And there would likely be lost future earnings as well. Given the multiple stab wounds, assume that the jury would have found that the patient’s life expectancy was reduced from 40 years to 15 years and that he could no longer perform heavy labor, so that his anticipated lifetime earnings, adjusted to present value, would drop from $500,000 to $100,000. As a result, Griego would be liable for $400,000 in lost future earnings. In addition to economic damages, Griego would be liable for non-economic damages, such as pain and suffering.
{85} Second, Plaintiff could recover for the aggravation of the patient’s injuries caused by Defendants. The liability of Defendants for their malpractice would be for “ ‘injuries over and above those which otherwise would have been sustained.’ ” Lujan, 120 N.M. at 426, 902 P.2d at 1029 (quoting Duran v. General Motors Corp., 101 N.M. 742, 688 P.2d 779 (Ct.App.1983). In other words, one would calculate the damages for the patient’s death and subtract from that the damages that would have resulted had there been no medical malpractice. Thus, for example, Defendants could be liable for the patient’s $500,000 in lost future earnings, less the $400,000 earnings loss caused by the stabbing alone, for a net of $100,000 in lost-earnings damages. The economic damages owed by Defendants could be reduced still further, if, as one might expect, the medical expenses for the patient arising from the stabbing would have been greater if he had lived than they turned out to be in fact. (Later in the opinion I will discuss whether Griego should share liability with Defendants for the aggravation of the injuries.)
{86} As far as I can tell, the above discussion of how damages would be apportioned between the original injury and the aggravation is unexceptional. I am aware of no authority, including the majority opinion, to the contrary. My difference with the majority is not in how to apportion damages between the initial injury and the aggravation when evidence permits the jury to make the apportionment. My disagreement relates to (1) what evidence is necessary before the jury is entitled to apportion damages between the initial injury and the aggravation, (2) what happens if such evidence is lacking, and (3) if such evidence is present, who shares in the liability for the aggravation.
{87} As I understand Restatement, supra, § 50, there was insufficient evidence to establish a fully divisible injury in this case. To be sure, there is a difference between life and death, and an expert in this case testified that the patient would not have died if given proper medical care (although the jury did not have to believe the expert). But loss of life in itself (aside from the resulting lost earnings or lost pleasures of life) is at most only one element of damages. As for other elements of damages, death need not increase, and may even diminish, them. Consider loss of future earnings. One who survives an injury may have no ability to earn income in the future, so alleged fatal malpractice may not increase that element of damages whatsoever. Some other losses suffered by a survivor — such as pain and suffering and future medical expenses — are not suffered by one who dies. For that reason, juries often find that damages for wrongful death are less than those for seriously disabling the victim. To put the matter crudely, tortfeasors may find it cheaper to kill than to maim.
{88} Because there was no evidence regarding what damages the patient would have suffered had he lived, the jury could not divide any of the elements of damages in this case, with the possible exception of loss of life in itself, if that is an element of damages. (Of course, on remand the evidence may well suffice to make some or all elements of damages divisible.) Damages that cannot be divided must be treated as indivisible. As pointed out in the Reporters’ Note to Section 50 of the Restatement, some damages in a case may be divisible while others are not.
If the plaintiffs physical injuries are separate, such as a broken leg and a broken arm, some of the damages may be divisible, but some may be indivisible. For example, if the plaintiff could work with either a broken arm or a broken leg, but not with both, the broken arm and the broken leg each was a “but for” cause of the inability to work, and any lost wages are indivisible.
Restatement, supra, at 477. For the indivisible damages in this case, the responsibility of Defendants would properly be compared to that of Griego for purposes of assessing liability.
{89} I do not read Lujan as requiring us to hold that the patient’s damages in this case were divisible. It is essential to keep in mind what the issue was in Lujan. The victim had been injured in a motor vehicle collision and then allegedly was further injured by the medical malpractice of defendant Healthsouth. The plaintiff settled with the other driver in the collision. When the plaintiff then sued Healthsouth, Healthsouth contended that it was released by the prior settlement. To decide whether Healthsouth was released, Lujan found it necessary to discuss how liability should be assigned when a health care provider’s malpractice causes a successive- injury. Nowhere in Lujan does the opinion indicate that it is resolving a dispute regarding whether Healthsouth caused an aggravation of a prior injury, whether there was a divisible injury, or whether the tortfeasors were successive tortfeasors. Those aspects of the case were taken as given. The appellate briefs of both parties asserted that the case involved successive tortfeasors.
{90} Hence, I cannot agree with the majority that Lujan required the district court in this case to hold as a matter of law that the alleged malpractice caused a divisible injury, an aggravation of the original injury. On the contrary, the evidence was insufficient to satisfy the Lujan requirement that the claimant “demonstrate the degree of enhancement, and ... offer proof of what injuries, if any, would have resulted [in any event].” Lujan, 120 N.M. at 426, 902 P.2d at 1029 (internal quotation marks and citation omitted); see Restatement,, supra, § 50. Moreover, even when there is sufficient evidence, the matter should still ordinarily be left to the jury. See Restatement, supra, § 50, cmt. 1 at 464 (“When there is conflicting evidence about these causal relationships or damages, a determination of whether the damages are divisible depends on findings about these facts. That may require special interrogatories.”) The trial judge has sufficient power to ensure that the jury’s decision is not improperly influenced by inflammatory evidence regarding the, stabbing.
{91} Adopting the Restatement approach, and assuming that Plaintiff in this case did not prove the divisibility of damages, then there was nothing improper in Defendants’ efforts to compare the responsibility of the assailant Griego with the alleged responsibility of Defendants themselves, so Plaintiffs motion in limine was properly denied. Indeed, there may well be future cases in which a plaintiff will want an injury considered as indivisible so that the jury will compare the responsibility of a doctor who is accused of malpractice with the responsibility of the tortfeasor who caused the condition treated by the doctor. To be sure, in this case Griego would likely be assigned a large share of responsibility, so indivisibility of the damages would be against- Plaintiffs interests. But we should not, change the rule , of law from case to case in order to prefer one class of litigants over another.
{92} One issue remains. Assuming that the evidence persuades the jury that the patient’s damages are divisible, who should bear liability for the’ aggravation of the original injury? In Lujan the Supreme Court said that Healthsouth should ultimately be solely liable for the entire enhanced injury. See 120 N.M. at 426, 902 P.2d at 1029. The court held that even if the original tortfeasor could be liable for harm caused by foreseeably negligent medical treatment, the original tortfeasor “can shift through indemnification the responsibility for an enhanced injury” to the medical care provider. Id. at 427, 902 P.2d at 1030.
{93} This is an interesting result. Ordinarily, under the doctrine of comparative responsibility the factfinder compares the responsibility of all who proximately cause an injury. See § 41-3A-1(D). Since the original tortfeasor’s act is a proximate cause of the aggravation arising from the foreseeable malpractice, one could assume that the original tortfeasor’s responsibility should be compared with that of the health care provider and liability apportioned accordingly, just as with other concurrent tortfeasors. After all, with respect to the aggravation the original tortfeasor and the health care provider are concurrent tortfeasors because each was a proximate cause of the aggravation. This is the approach taken by the Restatement. See Restatement, supra, § 50(a); supra, cmt. d; supra, Reporters’ Note to cmt. d. (Contrary to the assertion by the majority, see ante, ¶ 61, this is the only approach recognized by the Restatement. The majority’s reliance on Restatement, supra, § 7 ill. 2, is misplaced. The illustration recognizes the possibility of divisible injuries, but it says absolutely nothing about whether the original tortfeasor shares in liability for aggravation of an injury caused by medical negligence.)
{94} It would make sense to relieve the original tortfeasor of any responsibility for the aggravation if the malpractice could be treated as an independent intervening cause. (The facts in Lujan might have supported such an analysis because the malpractice consisted of -improperly manipulating the leg, refracturing the original fracture, more than a month after the motor vehicle accident. See Lujan, 120 N.M. at 423-24, 902 P.2d at 1026-27.) - -Yet even if the intervening-cause doctrine has continuing validity, but cf. Torres v. El Paso Electric Co., 1999-NMSC-029, 127 N.M. 729, 987 P.2d 386, it would not enable the original tortfeasor to escape liability for the aggravation if the purported intervening cause was reasonably foreseeable, as may well be the case with medical malpractice.
{95} In any event, Lujan did not adopt an intervening-cause rationale. Rather, it relied on indemnification principles. Indemnification “ ‘may ... arise without agreement, and by operation of law to prevent a result which is regarded as unjust or unsatisfactory.’ ” In re Consolidated Vista Hills Retaining Wall Litigation, 119 N.M. 542, 546, 893 P.2d 438, 442 (1995) (quoting W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 51, at 341 (5th ed.1984)).
{96} In applying indemnification principles to a successive tortfeasor, Lujan relied on five decisions from other jurisdictions. See Lujan, 120 N.M. at 427, 902 P.2d at 1030. Not only does that authority appear to be inconsistent with the Restatement, but it has been distinguished by at least one court on the ground that most of the cases arose before the adoption of comparative responsibility or contribution among tortfeasors. See Kemper Nat’l v. Smith, 419 Pa.Super. 295, 615 A.2d 372, 378-79 (1992); see also Lujan, 120 N.M. at 427, 902 P.2d at 1030 (citing cases from Arizona and Kansas that rejected indemnification). Also, two of the five cases apparently are no longer good law in their own jurisdictions, at least to the extent that they are read as providing for complete indemnity against the health care provider. See Western Steamship v. San Pedro Peninsula Hosp., 8 Cal.4th 100, 32 Cal.Rptr.2d 263, 876 P.2d 1062, 1064 (1994) (indemnification limited to hospital’s proportionate fault); Coleman v. Franklin Blvd. Hosp., 227 Ill.App.3d 904, 169 Ill.Dec. 840, 592 N.E.2d 327, 328-29 (1992) (there is no implied indemnity absent a pre-tort relationship between the successive tortfeasors).
{97} But even accepting Lujan’s adoption of an indemnification approach, I have difficulty seeing why it would be available here, given the rationale for indemnification. This is not a ease where, as in Lujan, weeks after an accidental injury a medical care provider refractured the original fracture site. See Lujan, 120 N.M. at 424, 902 P.2d at 1027. Why should Griego be entitled to indemnification from Defendants? He stabbed the patient multiple times. The jury that convicted him of second degree murder was convinced beyond a reasonable doubt that Griego intended to kill the patient. The patient died only hours later. The record does not suggest that Griego arranged to take the patient to the hospital for care; it would not be surprising if Griego left the patient to die of his wounds. In that circumstance, would it be “regarded as unjust or unsatisfactory” to deny indemnification to Griego against Defendants? And if the indemnification rationale fails, then Lujan is distinguishable. (To say, as the majority does, see ante, ¶ 62, that the discussion of indemnity in Lujan was not necessary to the holding, is to say that no rationale whatsoever was necessary to hold Healthsouth solely liable for the aggravation of the injury.) Without a reason supporting indemnification, I would assume that principles of comparative responsibility would apply. In short, even if Lujan states a general rule regarding indemnity against health care providers, the facts here demand a different approach. Absent some rationale other than that provided by Lujan, the responsibility of Griego must be compared to that of Defendants.