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A recent ruling by the U.S. District Court for the District of New Mexico dismissed the plaintiffs’ claims under the U.S. Constitution and the New Mexico Tort Claims Act as untimely.  In arriving at its conclusion that the claims were untimely, the court considered and rejected the plaintiffs’ arguments under the continuing violations doctrine.

The plaintiffs had sued the City of Espanola and employees after trying – for years – to get water and sewer services to their trailer that had been turned off turned back on.  Allegedly the prior owners of the trailer, who had been the plaintiffs’ landlords before the plaintiffs purchased the trailer, had not been forwarding money that the plaintiffs gave them for water and sewer services to the city.  The city’s records showed $1,760 owing on the account around December 2016.  A few weeks later, in February 2017, the plaintiffs discovered that the services had been discontinued.  Upon going to City Hall to investigate further, the plaintiffs were told the city had switched off municipal services due to the $1,760 unpaid account balance.

The plaintiffs tried to remedy the situation by explaining to city employees on multiple occasions that the overdue balance belonged to a deceased person who was a prior owner of the property.  In March 2017 they informed city officials in the Water Department that the denial of water services violated their rights.  Allegedly it took until March 2020 – over three years – to get services switched back on, and even then the bills for water came in increasing amounts and were addressed to the deceased.

In a recent case, the Chief Magistrate Judge for the U.S. District Court for the District of New Mexico reviewed the terms of a personal injury settlement.  The review was on behalf of minors, two children whose father was killed in a car accident, to determine if the settlement should be approved.  Allegedly the minors’ father was killed when a pick-up truck he was driving was struck head-on by a pick-up truck that had crossed the center line in the roadway.  The driver of that pick-up truck was killed in the accident also.

The children were not in their father’s pick-up truck at the time of the accident and did not sustain bodily injuries in connection with the accident.  Their mother brought litigation, on her own behalf, on behalf of the estate of their father, and on behalf of the children.  She sought recovery of damages from multiple parties including the company that employed the driver of the vehicle that had struck her husband’s vehicle, and the driver’s insurance company.  The litigation she brought led to a settlement.

As part of the settlement, she and her children were to receive $4,530,007.00, comprised of several payments.  Under § 41-2-3(B) of New Mexico’s Wrongful Death Act, one half of the net settlement proceeds was to be distributed to her and the remaining half was to be distributed evenly between her two children and invested on their behalf.  The guardian ad litem appointed by the court was in favor of the settlement.

In a recent ruling applying New Mexico personal injury law, the United States District Court for the District of New Mexico denied the defendant tractor-trailer manufacturer summary judgment on most grounds and granted the tractor-trailer manufacturer summary judgment in part.

The underlying litigation was brought following a fatal collision between a car and a tractor-trailer on Route 66.  The surviving sister of the woman who was fatally injured in the lawsuit, acting as the personal representative of the woman’s estate, was the plaintiff.  She alleged that her sister’s car struck the side of a tractor-trailer that was pulled across both lanes of traffic on Route 66.  She further alleged that, during the collision, the car drove under the “under-rode” the tractor-trailer, causing the roof of the vehicle to collapse on her sister’s head and neck, severely injuring her.  Her sister later died in the hospital.

The plaintiff asserted claims of strict products liability and negligence against the tractor-trailer manufacturer, and sought compensatory and punitive damages, on the basis that the tractor-trailer her sister’s car collided with was not equipped with a side guard to prevent vehicle under-riding. Continue reading

The U.S. District Court for the District of New Mexico, one of the federal courts in the state, recently remanded a New Mexico personal injury lawsuit back to the Second Judicial District Court, Bernalillo County, the state court in which the plaintiff had filed her lawsuit. The plaintiff allegedly had suffered physical injuries after slipping and falling at a store maintained by a national retailer in Albuquerque.  She sued in state court, seeking to recover damages based on New Mexico state law, and asserted causes of action including negligence and negligent hiring, training and supervision against the store and people associated with it, among them the assistant store manager.  The plaintiff’s theory of the case was that other customers had told people working at the store that there was a spill but the people working at the store did not clean the spill up, resulting in her falling and getting hurt.

The defendants removed the case from state court to federal court pursuant to section 1332(a) of the U.S. Code, which requires a diversity of state citizenship among the parties and an amount in controversy exceeding $75,000 exclusive of interest and costs.  In support of removal the defendants argued that, although there was not a diversity of citizenship when the presence of all of the defendants was considered, the federal court should exercise jurisdiction because some of the defendants were fraudulently joined.  Based on this argument they sought to have the case proceed in federal court, their chosen forum.  The plaintiff was opposed to proceeding in federal court, and sought an award of attorneys fees and costs for efforts in seeking remand back to state court.

The court’s analysis was unusual because it relied heavily on a line of cases dating back to 1982 for the proposition that all doubts are to be resolved against removal.  More recent case law has been somewhat deferential to defendants, who sometimes prefer to try to win a case via federal court motion practice instead of preparing for trial in state court.   The court rejected the defendants’ position that the plaintiff could not assert claims against some of the named defendants.  The court reasoned it could not say there was no possibility of the plaintiff being able to establish her claims.  Accordingly, the court ruled for the plaintiff and granted the motion to remand the lawsuit back to state court, in part.  The court did not award the plaintiff attorneys fees and costs, concluding the defendants had an objectively reasonable basis for seeking removal to federal court and did not remove the case to prolong litigation or impose costs on the plaintiff.

A recent opinion by the New Mexico Court of Appeals, Salas v. Clark Equipment Company, reverses the district court’s grant of summary judgment to a lumber company that had been named as one of the defendants in the plaintiffs’ personal injury suit.  The plaintiffs/appellants included a widow, children and grandchildren.  They sued the lumber company and other defendants following the death of their loved one, seeking damages based on the decedent having allegedly been exposed to products containing respirable asbestos as part of his work in home construction and as a miner and mechanic.

In 2013 the decedent was diagnosed with lung cancer.  He died later that year.  According to the Court of Appeals, over the course of the several years since the decedent’s passing, there was litigation that resulted in the plaintiffs achieving settlements with most of the defendants.  The lumber company and three other defendants did not settle with the plaintiffs.  They filed summary judgment motions, asserting that they were entitled to judgment in their favor as a matter of law.  After the defendants won, the plaintiffs appealed.

On appeal, three out of four defendants won again when the Court of Appeals upheld the summary judgment rulings in their favor.  But the Court of Appeals reversed the grant of summary judgment with respect to the lumber company defendant.

In a recent New Mexico civil case the plaintiff sought to recover damages for physical injuries and post-traumatic stress allegedly resulting from an incident during which he was forcibly handcuffed by a police officer.  The plaintiff’s complaint was filed in state court and included claims under state law for assault, battery and false imprisonment.  Additionally the plaintiff alleged violations of his constitutional rights.

The defendants to the state court action were the State of New Mexico and a police officer.  The defendants filed a notice of removal with the United States District Court for the District of New Mexico, thereby removing the case out of state court and into federal court.  The defendants then moved the District Court for judgment on the pleadings under Federal Rule of Civil Procedure 12.

The federal trial court began its analysis of the relief requested in the defendants’ motion by turning to Federal Rule of Civil Procedure 8.  Rule 8 requires that a complaint set out a short, plain statement of the claims showing that the pleader, here the plaintiff, is entitled to relief. The court observed that Rule 8 also directs courts to construe pleadings “so as to do justice.”

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A recent ruling by the United States District Court for the District of New Mexico in a truck accident lawsuit allowed the plaintiffs to proceed with some but not all of their causes of action, after the defendants challenged the sufficiency of the plaintiffs’ complaint.

The court’s analysis followed a tractor-trailer collision resulting in an injured driver being transported for medical treatment via emergency helicopter.  Allegedly the police attributed the collision to driver inattention and following too closely, but did not specify which of the drivers was at fault.  The plaintiffs sued the driver, asserting causes of action for negligence and negligence per se.  In the same complaint, the plaintiffs asserted causes of action against the driver’s employer based on legal theories including respondeat superior/vicarious liability, negligent hiring, negligent entrustment and negligent training and supervision.  After the parties had filed their pleadings and before the pretrial discovery process, the defendants challenged the sufficiency of the plaintiffs’ complaint.

When the sufficiency of a complaint is challenged so early on in the life of a personal injury case, the court is required to construe the facts set forth in the pleadings and inferences that can be drawn from the facts in the light most favorable to the party opposing dismissal of the complaint.  The court is to treat well-pleaded factual allegations in the pleadings of the party opposing dismissal as true, and consider whether they could establish a basis for liability.

In a recent case, a New Mexico personal injury plaintiff timely identified his treating physicians as potential trial witnesses.  He did not timely come forward with any retained experts.  According to the court’s ruling, approximately a month after the plaintiff made his disclosures, the defendant, a national retail chain, produced the plaintiff’s medical records.  Although the records concerned the plaintiff’s treatment, the plaintiff did not have the records before the plaintiff obtained them.  The defendant, with the plaintiff’s concurrence, obtained an extension of the defendant’s expert disclosure deadline.

Subsequently, the defendant disclosed a medical doctor as an expert witness, and indicated that the doctor was expected to testify that the slip and fall accident underlying the litigation was not the cause of the plaintiff’s injuries attributed to the slip and fall.  Further the doctor was anticipated to testify that the accident did not aggravate pre-existing conditions suffered by the plaintiff and that the pre-existing factors and conditions were the likely explanations for the treatment and related costs incurred by the plaintiff.  In support of this theory of the case, the defendant produced an expert witness report.  The defendant’s actions put the plaintiff in a bad position insofar as the plaintiff needed relief from scheduling deadlines to come forward with a competing expert opinion on causation.

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Courts set deadlines for discovery as part of the process of advancing New Mexico personal injury cases towards trial.  Sometimes deadlines are missed.  In a recent case brought following a car accident that occurred in San Juan County, the parties were court ordered to disclose experts by March 13, 2020. The court set a discovery deadline of April 13, 2020.  On April 14, 2020 – the day after the close of discovery – the defendant moved the court for summary judgment under Federal Rule of Civil Procedure 56.  The basis for the defendant’s motion was that the plaintiff was unable to prove causation without a timely disclosed expert witness.  The stakes were high for the plaintiff.  Had the court granted summary judgment to the defendant, the plaintiff would have lost the case on paper and not had the opportunity to present it at trial.

The court denied the plaintiff the opportunity to extend the deadline, after the deadline had passed.  But the court did not grant summary judgment to the defendant due to the lack of a timely disclosed medical expert.

The record before the court, which the parties had presented in the context of the summary judgment motion, included the plaintiff’s testimony that he had experienced no lower back problems prior to the car accident.  He stated that he suffered from “lower back/Hip [injury]; Aggravation of Hernia” following the accident.  The record also showed that the plaintiff visited a hospital on the day of the accident, and had four more hospital or urgent care visits within two months of accident.  The accident was listed as the reason for all five visits.

In a recent ruling, the United States District Court for the District of New Mexico decided to defer to the plaintiffs’ choice of forum.  Two plaintiffs, a husband and a wife, sued a trucking company that the wife had worked for as a commercial truck driver.  The couple also sued in the same complaint a trainer who had worked for the trucking company.  The company filed a motion, opposed by the plaintiffs, to transfer the lawsuit to the Western District of Kentucky, where the company allegedly maintained its principal place of business.  The trainer did not take a position on the relief requested in the motion to change venue as of the time that the U.S. District Court acted on the motion.

Among the orders that a federal trial court presiding over a lawsuit can make is an order transferring venue.  Venue can be transferred to any other district court in which the action could have been brought, pursuant to section 1404(a) of Title 28 of the United States Code.  A party seeking the relief of venue transfer must show that the existing forum is an inconvenient forum.  While a plaintiff’s choice of forum is afforded some deference, there are multiple factors that courts consider when deciding a motion to transfer venue.

Among the factors that the court identified as informing the analysis in this case were witness accessibility, the cost of proving the case, the ability to enforce a judgment if one is obtained in the case, the difficulties arising from the congestion of courts’ dockets, the advantages of having local courts decide questions of local law, and practical considerations that would facilitate expeditious and economical trial of the case.