Proof of causation is essential for liability in a personal injury claim. The Tenth Circuit Court of Appeals recently set forth the “but for” analysis undertaken in New Mexico personal injury cases in Wilcox v. Homestake Mining.
The Court made it clear that a plaintiff must show that “but for” the defendant’s negligence, the plaintiff would not have suffered injuries. In Wilcox, a toxic tort case, the Court found that the plaintiffs had failed to make this showing. The ruling suggested rather harsh treatment of plaintiffs in New Mexico personal injury cases when it comes to causation since the plaintiffs could not show that their illnesses, including cancer in some of the plaintiffs, would not have occurred but for the toxic exposure.
The ruling in Wilcox is interesting when viewed in light of a recent New Mexico Court of Appeals case, Provencio v. Wenrich. Provencio involved a failed and admitted negligently performed sterilization procedure. The plaintiff sued the doctor for medical malpractice for the wrongful birth of a child.
Notably, New Mexico law allows a parent to recover damages for the costs of raising a child following a negligent and failed sterilization procedure. Perhaps, the most remarkable aspect of the case is that the doctor informed the plaintiff that the sterilization procedure had died, and the plaintiff chose not to have the system corrected. Instead, the plaintiff decided to use condoms for birth control and became pregnant.
The defendant moved for judgment as a matter of law at the close of the plaintiff’s case at trial for the failure of the plaintiff to prove that the defendant failed to warn the plaintiff of the failed procedure. The district court granted the defense motion dismissing the case. The New Mexico court of appeals reversed, stating that proof of failure to warn by the doctor was not an essential element of the plaintiff’s claim.
The defendant argued that the plaintiff’s knowledge of the failed procedure and her failure to take appropriate remedial action constituted an independent intervening cause of the wrongful birth. The court followed the 1999 New Mexico Supreme Court case of Torres v. El Paso Electric, holding that independent intervening causation is no longer observed in New Mexico. Instead, the law in New Mexico is based upon comparative fault, and the comparative fault is always left to the jury.
Thus, the case will be returned to the district court for retrial. The jury will be left to decide on the issue of comparative fault and may very well decide in favor of the defendant. However, the court rightfully turned this decision back over to the jury. The ruling is seemingly difficult to reconcile with the Wilcox case. In Wilcox, the court ruled that the plaintiffs had failed to adequately illustrate the causal connection between the toxic exposure and the resulting illnesses. In Provencio, there was no lack of evidence.
Even following Wilcox with a “but for” analysis in Provencio would lead back to the jury. It is left to the jury to weigh the “but for” of the doctor’s negligence against the “but for” of the plaintiff’s comparative negligence. The main difference between the two cases is that the Tenth Circuit in Wilcox took the issue from the jury. At the same time, the New Mexico Court of Appeals in Provencio left the determination where it rightfully belongs.