Estate v. United States Government - Medical Negligence Summary Judgment

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March 6, 2026 Get Citation Alerts Download PDF Add Note

The Estate of Robert Lawrence Reynolds, Represented by his widow Linda Lee Collier as Personal Representative; and Linda Lee Collier in her individual capacity v. United States Government

District Court, D. New Mexico

• Citations: None known
• Docket Number: 2:23-cv-00206

• Precedential Status: Unknown Status

• Opinion

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

THE ESTATE OF ROBERT LAWRENCE REYNOLDS,
Represented by his widow LINDA LEE COLLIER as
Personal Representative; and LINDA LEE COLLIER
in her individual capacity,

Plaintiffs,

v. No. 2:23-cv-0206 DLM/GJF

UNITED STATES GOVERNMENT,

Defendant.

MEMORANDUM OPINION AND ORDER

In February 2020, Robert Lawrence Reynolds was admitted to the Veterans Affairs
Medical Center (VAMC) in Albuquerque, New Mexico for treatment of an infection. During his
hospitalization, he contracted COVID-19, and his condition deteriorated. On July 17, 2020,
Reynolds passed away, in part due to complications from COVID-19. His widow, Linda Lee
Collier, brings suit against the United States for medical negligence and loss of consortium. Collier
has not retained an expert witness to testify about the alleged medical negligence. The United
States moves for summary judgment and argues that without a medical expert, Collier’s claims
necessarily fail. For the reasons discussed below, the Court will grant summary judgment to the
United States and dismiss the medical negligence and loss of consortium claims.
I. Legal Standards and Evidentiary Rulings
A. Summary Judgment Standard
“Summary judgment is proper if, viewing the evidence in the light most favorable to the
non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Halley v. Huckaby, 902 F.3d 1136, 1143 (10th Cir. 2018), cert.
denied, 139 S. Ct. 1347 (2019) (citing McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018)).
“A fact is ‘material’ if it could influence the determination of the suit.” Ortega v. Edgman, No.
1:21-cv-0728 RB/JHR, 2023 WL 3122460, at *5 (D.N.M. Apr. 27, 2023) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A dispute over a material fact is ‘genuine’ if a

reasonable trier of fact could return a verdict for either party.” Id. (citing Anderson, 477 U.S. at
248). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to
support the nonmoving party’s case.’” Id. (quoting Tanner v. San Juan Cnty. Sheriff’s Off., 864 F.
Supp. 2d 1090, 1106 (D.N.M. 2012)). “Once the movant meets this burden, [R]ule 56 requires the
non-moving party to designate specific facts showing that there is a genuine issue for trial.” Id. (quoting Tanner, 864 F. Supp. 2d at 1106). “A party cannot ‘avoid summary judgment by repeating
conclusory opinions, allegations unsupported by specific facts, or speculation.’” Id. (quoting
Tanner, 864 F. Supp. 2d at 1107). “Instead, the non-moving party must come forward with
‘sufficient evidence on which the factfinder could reasonably find’ in their favor.” Id. (quoting
Tanner, 864 F. Supp. 2d at 1107). “Evidence that is ‘merely colorable,’” id. (quoting Anderson, 477 U.S. at 249), “or consists only of ‘[u]nsubstantiated allegations[,]’” id. (quoting McCoy v.
Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018)), is insufficient.
B. Relevant Local Rules
Local Rule 56 requires the party moving for summary judgment to “set out a concise
statement of all of the material facts as to which the movant contends no genuine issue exists.”
D.N.M. LR-Civ. 56(b). The movant must number the facts “and must refer with particularity to
those portions of the record upon which the movant relies.” Id. The non-moving party must also
provide “a concise statement of the material facts . . . as to which the non-movant contends a
genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to
those portions of the record upon which the non-movant relies, and must state the number of the
movant’s fact that is disputed.” Id. “All material facts set forth in the Memorandum will be
deemed undisputed unless specifically controverted.” Id. (emphasis added).
The United States submits a statement of material facts. (See Doc. 95 at 3–4.) Collier,

whose entire response is comprised of only five numbered paragraphs, makes no attempt to address
or dispute the United States’ factual assertions. (See Doc. 102.) Moreover, Collier offers only a
single factual assertion but fails to support it with citations to the record. (See id. ¶ 4.)
Consequently, she fails to meet summary judgment standards. Because Collier neither specifically
controverts the United States’ facts nor provides properly supported factual assertions in response,
the Court deems the United States’ facts undisputed.
II. Factual and Procedural Background
On February 27, 2020, Reynolds was admitted to the Albuquerque Veterans Affairs
Medical Center (VAMC) due to an infection in his lower extremity/foot. (See Doc. 95-1 at 3–4.)
Reynolds had a number of pre-existing health issues, including high blood pressure, congestive

heart failure, Parkinson’s disease, rapid weight loss, and emotional issues. (See Doc. 95-3 at 6–7.)
Reynolds was hospitalized during the COVID-19 pandemic. In the months preceding
Reynolds’s death, the State of New Mexico declared a public health emergency and “entered a
series of [public health orders]” imposing restrictions on New Mexicans.1 See, e.g., ETP Rio
Rancho Park, LLC v. Grisham, 564 F. Supp. 3d 1023, 1032–33 (D.N.M. 2021) (citing Updated:
Governor, Department of Health announce first positive COVID-19 cases in New Mexico, Press

1 As noted in ETP Rio Rancho Park, LLC, the Court takes judicial notice of the Governor’s press release and the
State’s public health orders to provide context to the period of time at issue in this lawsuit. See 564 F. Supp. 3d at
1032–33 & nn. 1–3. “District courts may take judicial notice of ‘a fact that is not subject to reasonable dispute because
it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.’” Id. at 1033 n.3 (quoting Fed. R. Evid. 201(b)).
Releases, Office of the Governor, https://www.governor.state.nm.us/2020/03/11/updated-
governor-department-of-health-announce-first-positive-covid-19-cases-in-new-mexico/ (Mar. 11,
2020); Kathyleen M. Kunkel, Public Health Emergency Order Limiting Mass Gatherings and
Implementing Other Restrictions Due to COVID-19, New Mexico Department of Health (Mar. 16,

2020), available at https://cv.nmhealth.org/archives/public-health-orders-and-executive-orders/)
(additional citations omitted). The COVID-19 virus was “extraordinarily serious and
deadly . . . .”2 Id. (quoting Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 30 (2020)
(Kavanaugh, J., concurring)) (subsequent citations omitted).
Reynolds contracted COVID-19 during his hospitalization. (See Doc. 95-1 at 4.) On June
25, 2020, Reynolds was admitted to the Medical Intensive Care Unit. (See id.) He developed Acute
Respiratory Distress Syndrome (ARDS),3 and “his condition declined further.” (See id.) At some
point, Reynolds “developed altered mental status[,] and a CT” revealed that he had suffered “a
large, hemispheric stroke . . . .” (See id.) Reynolds passed away on July 17, 2020, as a result of the
stroke and complications from COVID-19. (See id.; see also Doc. 31 ¶ 9.)

Collier, proceeding pro se, filed her original complaint on March 10, 2023. (Doc. 1.)
Attorney William Stripp entered his appearance on Collier’s behalf on May 26, 2023. (Doc. 16.)
The United States filed two motions to dismiss. (Docs. 20–21.) In the first, the United States asked
the Court to dismiss previously-named defendants—the Department of Veterans Affairs and
Unknown Persons 1–100—as improper parties. (See Doc. 20.) Collier did not respond to the
motion, and the Court granted it. (See Doc. 24 at 1.) In the second, the United States moved to

2 “The Court may also take judicial notice . . . that [COVID-19] is highly contagious and potentially fatal, because this
information is generally known within the District of New Mexico and can be ‘accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.’” Id. (quoting Fed. R. Evid. 201(b)).

3 See ARDS, https://www.mayoclinic.org/diseases-conditions/ards/symptoms-causes/syc-20355576 (last visited Mar.
4, 2026).
dismiss: (1) the wrongful death claim based on failure to exhaust her administrative remedies;
(2) the personal injury claim because, under New Mexico law, the right to bring an action for
personal injuries is extinguished on the individual’s death; and (3) the claim for prejudgment
interest on the basis that it is not allowed under the Federal Tort Claims Act (FTCA). (See Doc.

21.) Collier responded only to the first argument and submitted proof that she properly exhausted
her administrative remedies. (See Doc. 22.) The United States withdrew its argument regarding
exhaustion. (See Doc. 24 at 2 n.1 (citing Doc. 23 at 1).) Collier did not respond to the United
States’ second and third arguments regarding her claims for personal injuries to Reynolds or for
prejudgment interest, and the Court granted the motion to dismiss as to these claims. (See Doc. 22;
see also Doc. 24 at 7–11.) The Court allowed Collier to file an amended complaint. (See Doc. 24
at 12.)
Collier filed her Amended Complaint on January 7, 2024. (Doc. 31.) The Amended
Complaint delineates two counts: Count 1 brought under the FTCA for medical
negligence/wrongful death; and Count 2 for loss of consortium.4 (Id. at 4, 6.)

Following the filing of the Amended Complaint, the Court entered orders setting discovery
deadlines and a bench trial. (Docs. 42; 45.) Collier has received extensions of the deadlines at least
twice due to medical and/or financial issues. (See, e.g., Docs. 53 (Collier’s motion to reset
deadlines due to Collier’s and her attorney’s medical issues); 77 (Collier’s motion to extend the
expert report deadline due to limited financial resources).) The Court has also extended deadlines
sua sponte at least twice. (See Docs. 80; 89.) Most recently, the Court extended the discovery

4 In paragraph 36 of the Amended Complaint, Collier alleges that Reynolds “stated his wish not to be cremated but to
have his remains prepared in a traditional way by a mortuary.” (See id. ¶ 31.) Despite his wish, Collier alleges, the
VA’s months-long delay in releasing his remains resulted in cremation. (See id.) The parties discussed this allegation
at an August 25, 2025 status conference, and counsel for the United States “conceded that [Collier] raised [this] issue
. . . at the administrative level such that she may have preserved that claim.” (See Doc. 79 at 2.)
deadline to March 30, 2026, for the limited purpose of taking Collier’s deposition, and extended
the pretrial motion deadline to May 14, 2026. (See Doc. 108 at 7.) This order was necessitated due
to Collier’s failure to appear for a scheduled deposition after the United States made numerous
attempts to schedule one. (See id. at 1–2.)

On January 13, 2026, the United States moved for summary judgment on Counts 1 and 2.5
(See Doc. 95.) It argues that despite numerous extensions of the discovery deadlines, Collier has
not retained a medical expert, and without one, her claims fail. (See id. at 2–3, 7.)
III. Collier’s wrongful death claim fails without a medical expert.
Collier brings a claim against the United States for medical negligence resulting in
Reynolds’s wrongful death. (See Doc. 31 ¶¶ 24–37.) She contends that the VAMC medical
providers “owed [Reynolds] a duty of ordinary and reasonable care,” and they “breached that duty”
by failing to “exercise ordinary and reasonable care[] consistent with standards of medical care in
the community . . . .” (Id. ¶¶ 28–29.)
In order to prove medical negligence under New Mexico law, a plaintiff must show:
“(1) the defendant owed the plaintiff a duty recognized by law; (2) the defendant
breached the duty by departing from the proper standard of medical practice
recognized in the community; and (3) the acts or omissions complained of
proximately caused the plaintiff’s injuries.”

Hunt v. United States, No. 1:18-cv-1006 SWS/MLC, 2020 WL 4597282, at *3 (D.N.M. May 8,
2020) (quoting Blauwkamp v. Univ. of N.M. Hosp., 836 P.2d 1249, 1252 (N.M. 1992)) (citing
Provencio v. Wenrich, 261 P.3d 1089, 1093 (N.M. 2011)). “Under well-established New Mexico
law, the testimony of a medical expert is required ‘in most medical malpractice suits’ to establish”
each of the three elements of a medical malpractice claim. Montano v. Centurion Corr. Healthcare
of N.M., LLC, No. 1:15-cv-0415 KG/LF, 2019 WL 3539845, at *2 (D.N.M. Aug. 2, 2019) (quoting

5 The United States’ motion does not deal with the claim related to the alleged failure to timely release Reynolds’s
body. (See Doc. 95 at 2 & n. 1.)
Holley v. Evangelical Lutheran Good Samaritan Soc., 588 F. App’x 792, 795 (10th Cir. 2014));
see also Siebert v. Okun, 485 P.3d 1265, 1271 (N.M. 2021) (noting that the substantive elements
of medical malpractice and medical negligence are the same). Expert testimony is normally
required because “‘technical and specialized subject matter’ . . . is not within the ‘common

knowledge ordinary possessed by an average person . . . .’” Montano, 2019 WL 3539845, at *2
(quoting Holley, 588 F. App’x at 795). As a result, “unless the subject matter of the medical
malpractice action falls within ‘common knowledge ordinarily possessed by an average person,’
the plaintiff must obtain a medical expert to establish a medical negligence claim.” Id. (quoting
Gerety v. Demers, 589 P.2d 180, 195 (N.M. 1978)). On a motion for summary judgment, the
movant “‘need only point out the lack of an expert witness’ to prevail” on a medical negligence
claim. Id. (quoting Hilley v. Cadigan, No. A-1-CA-36168, 2018 WL 2213697, at *1, ¶ 3 (N.M. Ct.
App. Apr. 4, 2018)).
Here, it is undisputed that Collier has not secured a medical expert due to her financial
situation. (See Doc. 102 ¶ 2.) The United States argues that “[m]edical experience and education

are required to determine the diagnosis, treatment, and prognosis for care of an individual suffering
from so many disease processes, in addition to the Covid 19 virus.” (Doc. 95 at 6.) Collier
summarily responds that “when a patient enters a hospital without having a condition such as
Covid, and then acquires Covid which ultimately at least partially causes the patient’s death,”
common sense dictates that “the treating facility should be held at least partially responsible.”
(Doc. 102 ¶ 5.) Collier’s unsupported argument fails to move the needle.
The Court finds guidance in Montano, where the “[p]laintiff suffered from a myriad of
ailments” following gall bladder removal surgery. 2019 WL 3539845, at *1. “Various medical
specialists treated [him,]” and he alleged that certain medical providers failed to provide adequate
medical care. See id. The court opined that the “[p]laintiff’s complex medical history and multiple
ailments do not come within an average layperson’s common knowledge.” See id. at *2.
Consequently, the plaintiff could “not establish the elements of a medical negligence claim without
a medical expert.” Id. Because he had not produced a medical expert, the court granted the

defendant’s motion for summary judgment on the medical negligence claim. See id. at *3.
Similarly, here, Reynolds entered the hospital with multiple serious health conditions. He
contracted COVID-19 while hospitalized during a pandemic, and he died as a result of a stroke
and complications from COVID-19. This is simply not a case where the average factfinder can
reasonably figure out, “based on common experience or knowledge[,]” whether Reynolds’s
providers were negligent and whether that negligence proximately caused his death. See Shivner
v. CorrValues, LLC, No. 2:20-cv-0497 RB/CG, 2022 WL 1014978, at *12 (D.N.M. Apr. 5, 2022)
(citation omitted). Rather, determining whether the VAMC providers breached a standard of care
and proximately caused Reynolds’s death are “issues [that] involve a complex professional
assessment” that “is not within the ‘common knowledge ordinarily possessed by an average

person.’” See Holley, 588 F. App’x at 796 (quoting Pharmaseal Lab’ys, Inc. v. Goffe, 568 P.2d
589, 594 (N.M. 1977)) (citing Gonzales v. Carlos Cadena, D.P.M., P.C., No. 30,015, 2010 WL
3997235, at *2 (N.M. Ct. App. Feb. 19, 2010) (finding that expert testimony was required because
“the average jury would know little to nothing about any risks inherent in performing an ingrown
toe nail extraction on someone with diabetes or the standard of care for a podiatrist performing
such an extraction”)); see also St. John v. Wilcox, No. 1:08-cv-0229 JCH/KBM, 2009 WL
10666072, at *1–2 (D.N.M. Nov. 17, 2009) (finding expert testimony necessary to establish
standard of care and causation in a case where, despite the fact that decedent was unresponsive
when he arrived at the hospital and became aggressive and disoriented when he awoke, physician
ordered his release over the objections of his family).
In sum, without a medical expert, Collier cannot establish any of the three elements of her
medical negligence claim. The Court will, therefore, grant the motion and dismiss this claim.
IV. Collier’s loss of consortium claim is derivative of the medical negligence claim.

A claim for “[l]oss of consortium derives from the underlying cause of action in the
physically-injured spouse.” Archer v. Roadrunner Trucking Inc., 930 P.2d 1155, 1160 (N.M.
1997). “Loss-of-consortium damages are contingent upon the injured person’s entitlement to
general damages.” See id. (citations omitted). The United States argues that if Collier’s medical
negligence claim fails, “her loss of consortium claim must also fail.” (See Doc. 95 at 6–7
(discussing Archer, 930 P.2d at 1160).) Collier does not respond on this point and, therefore,
concedes the issue.
Nevertheless, the Court agrees with the Government. “New Mexico law . . . requires the
physically injured person to at least have a viable cause of action for general damages before a
family member may recover for loss of consortium.” See Weaver v. Safeco Ins. Co. of Am., No.

1:24-cv-1225 SMD/JHR, 2025 WL 2987618, at *6 (D.N.M. Oct. 23, 2025) (citing Archer, 930
P.2d at 1161; Turpie v. Sw. Cardiology Assocs., P.A., 955 P.2d 716, 718 (N.M. Ct. App. 1998)
(“[T]he defendant must be at least potentially liable to the injured [person] before it can be liable
to the [claimant] seeking loss of consortium damages.”)). Because the Court is dismissing Collier’s
medical negligence claim and she brings no other claims based on personal injuries to her spouse,
her loss of consortium claim must also be dismissed.
THEREFORE,
IT IS ORDERED that the United States’ Motion for Partial Summary Judgment on Count
1 for medical negligence/wrongful death and Count 2 for loss of consortium (Doc. 95) is
GRANTED.

DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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