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Articles Posted in Personal Injury

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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.

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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

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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.

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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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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

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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.

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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.

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