{9} "Abuse of discretion has been found where dismissal results in an injustice and special circumstances impeded [a] plaintiffs prosecution of his claim, or where a claim is being pursued actively after a prior lapse in activity." Sewell v. Wilson, 97 N.M. 523, 530, 641 P.2d 1070, 1077 (Ct.App. 1982). A district court must use its discretion in harmony with the spirit of the law, which is served by giving litigants a chance to be heard when possible.

Vigil establishes further that "a general practitioner may provide expert testimony relevant to the performance of a specialist, as long as the general practitioner's experience or training provides a sufficient foundation for his testimony." Vigil, 875 P.2d at 1101 (citing Sewell v. Wilson, 641 P.2d 1070, 1075 (N.M.Ct.App. 1982). In this case, it is clear that Dr. Henry's years of training and experience enables him to testify about the performance of the more specialized field of pediatrics.

Based on the foregoing, Dr. Singer opined that Defendant's failure to remove all of the tissue identified by the radiology report breached the standard of care. {19} Plaintiffs contend that under New Mexico law, Dr. Singer is qualified to testify on the issues in this case, even though he is not a specialist in the same field as Defendant. As support for this proposition, Plaintiffs cite to Sewell v. Wilson, 97 N.M. 523, 641 P.2d 1070 (Ct.App. 1982), a medical negligence case, in which this Court stated that "[w]here expert testimony is required, the mere fact that a medical witness is not a specialist goes to the weight, not to admissibility, of the witness'[s] expert testimony." Id. at 528, 641 P.2d at 1075.

These factors include 1) all written and oral communications between the court and counsel; 2) actual hearings by the court on motions; 3) negotiations and other actions between counsel looking toward the early conclusion of the case; 4) all discovery proceedings; and 5) any other matters which arise and the actions taken by counsel in concluding litigation. See id. at 694-95, 496 P.2d at 1090-91; Sewell v. Wilson, 97 N.M. 523, 527, 641 P.2d 1070, 1074 (Ct. App.), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982). In affirming the district court dismissal, the appeals court looked only to the one and one-half year period that transpired between the district court's February 18, 1982 order refusing to dismiss and the August 16, 1983 dismissal order.

missal was improper); Martin v. Leonard Motor-El Paso , 1965-NMSC-060, ¶¶ 9, 12, 75 N.M. 219, 402 P.2d 954 (stating that "it cannot be denied that the [plaintiff's] filing of the motion for a trial setting on the merits amounted to action by the plaintiff to bring the case to its final determination, and that such action came before the defendant elected to invoke his right to dismissal[,]" and, therefore, reversing the district court's dismissal of the plaintiff's complaint); Stoll v. Dow , 1986-NMCA-134, ¶¶ 4-5, 8-9, 12, 105 N.M. 316, 731 P.2d 1360 (rejecting the plaintiff's contention that his motion requesting a trial setting—made but never granted more than ten years prior to the defendant's motion to dismiss—"indefinitely tolled the [three-year] time period" for bringing his case to final disposition, and stating that "the fact that [the] plaintiff had filed a request for trial setting ... in 1973 is no obstacle to the granting of a [ Rule 1-041(E) ] motion to dismiss in 1984"); Sewell v. Wilson , 1982-NMCA-017, ¶¶ 6, 36, 97 N.M. 523, 641 P.2d 1070 (noting that the plaintiff in that case "moved for a trial setting" after the defendants filed their motion to dismiss but more than one year before the district court granted the motion, and holding that the plaintiff's request for a trial setting should "be considered in determining the propriety of the dismissal"). But those cases all predate our Supreme Court's 1990 amendment of Rule 1-041(E), an amendment that added the express prohibition against dismissing an action where the party is in compliance with a scheduling order, something that neither the parties nor the district court acknowledged or addressed.

Lopez, 2005–NMCA–054, ¶ 14, 137 N.M. 554, 113 P.3d 377. The medical expert has the task of testifying “as to how and why he arrives at an opinion that a defendant physician's conduct has been substandard.” Sewell v. Wilson, 97 N.M. 523, 528, 641 P.2d 1070, 1075 (Ct.App.1982). Thus, “[t]he qualifications of an expert are dependent on the type of negligence claimed and the medical complexity involved.”

The medical expert has the task of testifying "as to how and why he arrives at an opinion that a defendant physician's conduct has been substandard." Sewell v. Wilson, 97 N.M. 523, 528, 641 P.2d 1070, 1075 (Ct. App. 1982). Thus, "[t]he qualifications of an expert are dependent on the type of negligence claimed and the medical complexity involved."

Reynolds states that the trial court's ruling on a Rule 41(e) motion will be upheld except for a clear abuse of discretion. This court followed Reynolds and extended it in one aspect in Sewell v. Wilson, 97 N.M. 523, 641 P.2d 1070 (Ct.App. 1982). We have pointed out that a decision on a Rule 41(e) motion is to be based on the court record and matters presented at the hearing.

To the extent Dr. Tiona is a medical doctor and not a nurse, this goes to the weight to be given to her testimony and not whether such testimony is admissible. Sewell v. Wilson, 1982-NMCA-017, ¶ 23, 97 N.M. 523, 641 P.2d 1070 (N.M. Ct. App. 1982), superseded by statute on other grounds, (“[A] non-specialist can testify as to the standards of care owed by a defendant specialist, but only if the non-specialist is qualified and competent to do so.”)

. "[A] court may, in its discretion, consider as timely, activities occurring between the filing of the motion and the hearing on it." Sewell v. Wilson, 1982- NMCA-017, ¶ 36,97 N.M. 523,641 P.2d 1070, superseded by rule on other groundsas stated in Rodriguez, 2019-NMCA-065. The court should make its determination based on the court record and matters presented at the hearing on the motion to dismiss.