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Articles Posted in Negligence

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.

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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The pre-trial discovery process can enable parties to lawsuits in New Mexico to obtain information they would not otherwise be able to access.  A ruling by a magistrate judge for the U.S. District Court for the District of New Mexico shows that, while discovery in personal injury cases can be broad, federal law also sets limits on what is potentially discoverable.

The plaintiff in the discovery dispute at issue brought a lawsuit seeking to recover damages for injuries she allegedly suffered following implantation of a surgical mesh product intended for treatment of medical conditions of the female pelvis.  Among the defendants she sued were manufacturers and sellers of the surgical mesh and the doctor who allegedly recommended and implanted the mesh.

The underlying lawsuit has a somewhat complex procedural history because complications following surgical mesh implantations have occurred in multiple jurisdictions, and there are multiple courts hearing related disputes.  In this case, one of the corporate defendants removed the plaintiff’s lawsuit from New Mexico state court to federal court based on diversity of citizenship jurisdiction.  Then some aspects of the plaintiff’s lawsuit were swept into multi-district federal litigation in West Virginia.  The case was ultimately remanded to the District of New Mexico, after some of the defendants were dismissed, for resolution of the claims the plaintiff asserted against the doctor who allegedly recommended and implanted the mesh.  The plaintiff then filed an amended complaint alleging that the doctor who treated her had committed medical negligence by implanting the mesh in her body.

Recently the U.S. Court of Appeals for the Tenth Circuit, which hears appeals from jurisdictions including the District of New Mexico, upheld a ruling dismissing a personal injury suit based on a contractual one-year suit limitation provision.

The underlying personal injury suit was filed more than one year but less than two years after a house fire, which took the life of a woman who was living in the house.  Representatives of the woman’s heir and of the woman’s estate sued the home security company that had purportedly provided home protection services.  For $37.99 a month, the company had promised round the clock monitoring services.  Its advertising was attention-getting and included promises of 24/7 professional monitoring centers that would address alarms immediately to make sure help was on the way.  Yet, after receiving an alert late at night, the company made some calls from an unidentified number to try to investigate, but did not send help to the house or call the police or fire departments for help.

The contract pursuant to which the company provided its services did not include the promises made in the company’s advertising campaigns.  The contract purported to limit liability to the lesser of $300 or 6 times the monthly service fee, and included a one-year suit limitation provision.

Courts applying New Mexico’s laws recognize the principle of res ipsa loquitor.  In Latin res ipsa loquitor means the thing speaks for itself.  Under this principle, the very occurrence of an accident implies negligence.

In a recent case, one of the defendants filed a motion for summary judgment seeking dismissal of all claims asserted against it.  Among the arguments made by the defendant was that the plaintiff had not presented necessary expert testimony.  The court denied the defendant’s summary judgment.  After holding a hearing, the court was satisfied that the plaintiff had demonstrated, under the res ipsa loquitor principle, a triable issue of fact concerning whether the retailer had breached the duty of care it owed to the plaintiff.

Allegedly a person was injured by automatic doors when he went shopping at a store operated by one of America’s largest retailers.  The person was using a crutch for balance when he went to the store.  The crutch was hit by the door, ostensibly because an interior sensor on the door malfunctioned.  The defendant retailer did not accept responsibility for the accident and the injured person sued.  The defendant retailer moved for summary judgment.  Having come forward with its own expert the retailer faulted the plaintiff for not coming forward with an expert.

A recent opinion addresses whether a company that leases a store is liable for damages in a New Mexico personal injury suit, after a customer is attacked in a parking lot used by the store’s customers.

Allegedly two people were trying to purchase a video game console from an electronic gaming store in Santa Fe, and were asked to leave because they were attempting to make the purchase with a fraudulent credit card.  The man standing behind them succeeded in purchasing a video game console, left the store and went to the parking lot. He sued the company that owned the store after being attacked in the parking lot by the people who had been ahead of him in line at the store, who had been unsuccessful in buying a video game console.

The plaintiff did not name as a defendant to the lawsuit the landlord of the store.  The lease between the owner of the store, a company that the defendant had named in his lawsuit, and the landlord who leased the store its space, a company that the defendant had not named in the lawsuit, provided that the parking lot was a common area to be used by tenants as a common area.  The lease also reserved control of the parking lot to the landlord.

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Sometimes multiple parties can be held liable for the payment of damages in a single New Mexico truck accident case.  A recent case concerns the ability of a plaintiff to name a new party as a defendant in an amended complaint filed years after the initial complaint was filed, and following the expiration of the statute of limitations.

Allegedly, in 2015, a back seat passenger in a truck sustained injuries after the truck was struck by another vehicle.  In 2017, the injured passenger brought a lawsuit in New Mexico state court against the driver of the vehicle that collided with the truck.  He also sued the company that insured the vehicle that collided with the truck.  The insurance company removed the lawsuit to federal court.  The plaintiff then filed an amended complaint in 2019, naming as a defendant the employer of the driver of the vehicle that had collided with the truck in which the plaintiff had been traveling at the time of the accident.

The employer responded by filing a motion to dismiss, asserting that the court should dismiss the employer from the lawsuit because the claims against the employer were barred under New Mexico’s applicable three-year statute of limitations.  The plaintiff argued in response to the motion to dismiss that his addition of the employer as a defendant was timely under Federal Rule of Civil Procedure 15 because the claims related back to the claims in the original complaint.

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It is possible to alter the outcome of a jury trial in New Mexico personal injury cases by prosecuting post-trial motions and appeals.  A recent ruling handed down by an Albuquerque federal court reflects the difficulties inherent in winning post-trial motions for judgment as a matter of law or new trial.

In May of 2019, plaintiffs lost a jury trial in the U.S. District Court for the District of New Mexico.  After the jury delivered a unanimous verdict in favor of the defense, the plaintiffs moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(b).  In the alternative, the plaintiffs moved for a new trial under Federal Rule of Civil Procedure 59(a).  Under Federal Rule of Civil Procedure 50(b), the court could (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.  Similarly, under Federal Rule of Civil Procedure 59(a), the court was empowered to grant a new trial on all or some of the issues.

The plaintiffs contended in post-trial motions that evidence presented at trial showed that the defendant negligently risked his life and the lives of other pedestrians and motorists by failing to seek a Vision Report and presenting it to the Motor Vehicle Department (MVD); failing to report his losses of consciousness to the MVD; continuing to drive although he knew his ability to drive was substantially impaired; and driving without using supplemental oxygen.  After reciting these grounds for relief from the jury verdict, the court observed that they ignored evidence to the contrary that had been presented to the jury for consideration that supported the jury’s conclusion that the defendant had not been negligent.  The evidence discussed by the court included the testimony of the defendant’s optometrist that the defendant’s vision was good enough to drive and that the defendant had filled out MVD paperwork.  By the time of trial the MVD paperwork allegedly could not be located.  The court reasoned that the inability to locate the paperwork did not give rise to an inference that the paperwork had not been submitted to the MVD.  The court also observed that testimony had been presented that the defendant would have had to take a vision exam when renewing his driver’s license one month prior to the accident.