A personal representative appointed under New Mexico’s wrongful death statute cannot issue subpoenas before filing a lawsuit on behalf of the estate of the deceased individual, the state Supreme Court ruled on May 28.
The unanimous decision, written by Justice C. Shannon Bacon, clarified for the first time whether the Wrongful Death Act grants pre-lawsuit subpoena power to representatives who bring civil claims for damages in cases of deaths caused by another’s actions. The ruling determined that subpoena power is not available to a personal representative until after a civil lawsuit is filed.
The Court stated that “issuance of an appointment order concludes an appointment proceeding under the WDA, and subpoena power is not available to a PR pursuant to that proceeding.” It further explained that “the purely ministerial purpose of a WDA appointment proceeding does not involve a grant of subpoena power to a PR appointed independent of filing an actual wrongful death claim.”
The case stemmed from an appeal in a wrongful death lawsuit following Erika Chavez’s death in 2020 after her car was struck at an Albuquerque intersection by Jose Ortiz-Muñoz, who was employed at O’Reilly Auto Parts. The estate alleged Ortiz-Muñoz negligently caused the crash and that O’Reilly knew his vehicle had mechanical issues. Subpoenas were issued months before filing suit, leading O’Reilly Automotive Stores, Inc., to request dismissal based on improper use of subpoenas; this motion was denied by district court but later appealed.
The Supreme Court ordered further proceedings in Santa Fe district court regarding actions taken with subpoenas prior to filing suit. The justices noted they did not address circumstances where discovery might be proper prior to issuance of an appointment order.
