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Articles Posted in Personal Injury

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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A recent personal injury case discusses how to determine the citizenship of limited liability companies (sometimes referred to as LLCs) when they are parties to litigation in New Mexico federal court.  After a car accident, plaintiffs who were allegedly residents of New Mexico, filed a personal injury case in state court.  The plaintiffs brought the case in the First Judicial District, County of Santa Fe, on behalf of themselves and also on behalf of their minor children.  The defendants were a resident of Texas and a foreign limited liability company that had as its sole member a man who was allegedly a resident of Utah.  The foreign limited liability company filed a notice of removal seeking to proceed in federal court, the U.S. District Court for the District of New Mexico.

The plaintiffs responded by seeking remand of their personal injury case to state court, where they had initially filed it.  In support of their position they argued that the federal court lacked subject matter jurisdiction because there was not diversity of citizenship among the parties to the case.  This argument was based on the foreign limited liability company having hired a registered agent for service of process in New Mexico.  The plaintiffs also sought remand to state court on the basis of judicial economy.  They asserted that another lawsuit brought by different plaintiffs was proceeding in state court against the same corporate defendant based on the same incident. Continue reading

By bringing a motion in limine a party to litigation can request, outside of the presence of the jury, that certain evidence be included or excluded at trial.  In a recent personal injury case, the plaintiffs won a motion in limine filed with the United States District Court for the District of New Mexico.

In this recent case, the plaintiffs were seeking the exclusion of evidence concerning alleged consumption of nine to twelve light beers by the plaintiff who was driving the car that got into the accident at issue in the litigation.  One person was killed in that accident and others were injured.  The plaintiffs’ theory of the case was that the accident was caused by the blow-out of a left rear tire, and that it was not relevant that the plaintiff who had been driving the F-350 at the time of the accident.

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As part of a recent New Mexico personal injury case, insured property owners sought from their insurance company a defense under a landlord protection policy.  The property owners’ need for a defense arose after an alleged carbon monoxide leak in a property that they had rented out to a husband and wife seriously injured the husband and killed the wife.

Following those tragic events, the husband and the estate of his wife filed a state court complaint against the insurance company and other defendants, asserting claims of negligence, gross negligence, wrongful death and loss of consortium in the First Judicial District Court in Santa Fe, New Mexico.  The insurance company then sought a declaratory judgment from a federal court, the United States District Court for the District of New Mexico, providing that the insurance company was not obligated to defend the insured property owners in the state court case or indemnify them.

The insurance company’s position was that carbon monoxide poisoning fell within under the insurance policy’s pollutants and contaminants exclusion and the insurance policy’s expected or intended act or omission exclusion.

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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.

Recently, the United States District Court for the District of New Mexico handed down a ruling denying an insurance company’s motion to intervene.  The insurance company allegedly had paid the plaintiff workers’ compensation benefits under California law, and asserted that it should be allowed to intervene to assert a subrogation right to recover sums it paid out from any recovery the plaintiff achieved against the trucking company allegedly responsible for the plaintiff’s injuries.

The accident underlying the plaintiff’s personal injury suit occurred on westbound Interstate 40 in McKinley County, New Mexico.  According to the plaintiff’s complaint, traffic was backed up at the time of the accident because the road was under construction.  The complaint further alleges that a truck driver was driving on cruise control at a speed of 66 miles per hour.  As the driver approached a mile marker, he was allegedly looking down.  When the truck he was driving was a second away from a pickup truck, the driver of the pickup truck looked up.  Tragically, it was too late to stop the collision, which allegedly resulted in a fire and chain reaction of accidents on the interstate.

Among those sustaining serious personal injuries was the plaintiff, who was en route to California at the time, according to the complaint he filed in New Mexico’s 11th Judicial District Court against the truck driver, the trucking company that employed the driver and corporate affiliates of the trucking company.  The trucking company removed the complaint from the state court in which it had been filed to federal court.

In a recent ruling, the U.S. District Court for the District of New Mexico denied summary judgment to the sole defendant, an out of state tire manufacturer.  The case before the court arose after a tire blow out that allegedly was caused by manufacturing and design defects.  Allegedly after the tire blew out, a tragic single-vehicle accident occurred in which a pickup truck rolled over resulting in several people being injured and one person dying.

As part of its defense, the tire manufacturer unsuccessfully moved the court to enter a partial summary judgment in its favor holding that the plaintiffs could not recover compensatory damages for aggravating circumstances under New Mexico law.

Under New Mexico law, the personal representative of a wrongful death estate can recover compensatory damages on behalf of the estate.  When determining whether it is appropriate to award compensatory damages, a New Mexico jury can consider mitigating or aggravating circumstance attending the allegedly wrongful act, neglect, or default.  While compensatory damages generally are made available so that injured parties are made whole, compensatory damages under New Mexico’s wrongful death statute also further the interest of deterrence.  Compensatory damages in aid of the public policy interest in deterrence can be awarded even in instances where punitive damages cannot be awarded.
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A recent ruling by the U.S. District Court for the District of New Mexico reflects some of the challenges plaintiffs can encounter when naming a city and its mayor as defendants in a federal complaint seeking recourse for allegedly injurious conditions.

Last November a person filed a federal complaint against the City of Albuquerque and its Mayor, asserting claims for unlawful taking under the U.S. and New Mexico Constitutions and related claims for trespass and nuisance.  The plaintiff’s lawsuit arose from the city’s alleged catch and release of feral cats and kittens as part of a trap, neuter and release (“TNR”) program.  Under the TNR program, the plaintiff alleged, cats and kittens are trapped, sterilized, vaccinated and released.  The plaintiff alleged that, as a result, she and her neighbors and children are exposed to an extreme nuisance, disease, property damage and a reduction in property values, and that the problem is continuing because the TNR program is continuing.  The complaint attracted the attention of local news outlet KRQE, which ran a story reporting that, as of September 2019, 2,100 cats had been picked up of which 1,700 had been re-released.

The defendants responded to the complaint by filing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).  Under this rule a federal court is to review a complaint to assess whether its factual allegations state a claim for relief that is plausible on its face.

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The U.S. District Court for the District of New Mexico recently denied a dismissal motion filed on behalf of  defendants including the Santa Fe Public Schools. The plaintiffs had brought a lawsuit in state court based on alleged sexual abuse by their fourth grade teacher. The motion had sought dismissal of a complaint on the basis that the plaintiffs’ claims under federal and state law were time barred.

By the time the court adjudicated the motion to dismiss their claims the plaintiffs were over 24 years old.  The teacher and the school who has been sued removed the case to federal court, and sought dismissal of the claims based on alleged untimeliness.

The court first analyzed whether the applicable statute of limitations warranted dismissal of the plaintiffs’ federal claims.  The court explained that, with respect to the causes of action based on federal law, federal courts apply the statute of limitations and tolling laws of the relevant state.  In this case, New Mexico law provided a three year statute of limitations, and it was clear from the complaint that it was brought after the expiration of the three year period.  Accordingly, the court analyzed whether there was a basis to toll the statute of limitations with respect to the federal claims.  The court concluded that the plaintiffs’ alleged incapacity provided a basis for tolling the statute of limitations.  The plaintiffs had alleged that they had suffered from problems including post-traumatic stress, dissociation and drug addiction.  The court accepted that these allegations plausibly established incapacitation, for purposes of assessing the merits of the motion to dismiss.  The court also explained that whether the plaintiffs’ condition, in fact, incapacitated them was an issue that should be deferred until the parties brought summary judgment motions or tried the case.