New Mexico Injury Attorney Blog

Social media has created all kinds of new challenges and opportunities in litigation. It also creates a number of possible avenues for abuse. In nutshell, the courts are having a hard time keeping up with social media technology. Some issues are old in today's terms (a few years). One interesting issue than will have far reaching implications in litigation involves service of process issues.

Let's start with the "old" issues. One issue that has come back to bite many unwary social media enthusiast is the discoverability of social media accounts. Discovery in litigation is basically the collection of documents and records from the other side during the litigation process. The courts have had a hard time circumscribing allowable discovery of social media.

For those on both sides of the equation, there are many hazards. First, those snowboarding vacation photos do little to bolster your personal injury claims for a hurt back. Insurance companies are certainly on the lookout for such evidence. Surprisingly, many people even in the midst of litigation leave their social media accounts visible to all. Many more post the most inadvisable content. More than just goofy pictures, some will information about their case risking attorney client privilege.

It is also quite hazardous for those seeking to clean up their social media mishaps. In fact, litigants on both sides have faced severe sanctions for missteps. There are the normal sanctions for failure to turn over requested discovery. There are sanctions for destruction/spoliation of evidence by the deletion of accounts. Litigants have been sanctioned and lawyers have been disbarred for counseling it. Most severe are potential obstruction of justice charges in criminal cases for intentional destruction of evidence.

On the flip side, lawyers have been severely reprimanded for posing as a friend in order to gain access. This would include having investigators or the attorney's staff do the same. This constitutes very serious ethical violations for misrepresentation of identity. When the person has an attorney, it is considered unauthorized and unethical communication with a legally represented party.

This is all relatively old news. One fairly important wrinkle that has come up with social media is the legality of service of process via Facebook. A recent New York case involved a lawsuit by the FTC against a number of defendants in India. The facts are rather unique in that the defendants had been served by a variety of methods, acknowledged the lawsuit and hired an attorney to who entered an appearance on their behalf in the federal lawsuit. The subsequent service was for service of motions for violation of temporary injunctions issued by the court.

Though the facts of this case seem somewhat restrictive, the court set forth criteria for sufficiency of service via Facebook and/or email which would seem to allow broader application to service by Facebook, email and/or other social media.

The basic requirements of service is to put the defendant on notice of the suit. It has been suggested that the ruling leaves open the possibility of a fairly minimal showing of reliability of notice through these various media. According to some, It may be that it need only be shown that the defendant owns the account and is active on the account to meet the required indicia of reliability of notice of the lawsuit. It takes little imagination to come up with all manner of disputes over the each of these elements.

This like all the other social media issues will open a host of potential abuses by overzealous parties, attorneys, investigators and the like. It will also put the courts once again behind the technology curve as they try to define the scope of allowable service of process through social media. Unfortunately, this article does not come close to addressing all the potential technological issues and possible abuses. The courts will be left to that task.

Related Reading:
Growing Perils of Social Media - Your Insurer is Watching!
Outside Jury Influence Difficult Challenge with Rise of Mobile Technology and Social Media
Post at Your Own Risk! Social Media Discoverable in Litigation

Collins & Collins, P.C.
Albuquerque Attorneys

An attorney has a lot of leeway in determining the way to proceed during the course of a lawsuit. However, one specific area that an attorney needs authority from his or her client is during negotiations for a settlement. An attorney needs his or her client to specifically approve any settlement offer made or accepted in order for the settlement to be legally binding.

In Gomez v. Jones-Wilson, the New Mexico Court of Appeals dealt with issues resulting from unclear settlement negotiations arising from a car accident. There were multiple defendants. The attorneys for the parties were negotiating settlement of the claims. An oral agreement was reached on settlement. However, it would become clear that the parties and their attorneys disagreed as to which parties the settlement agreement related.

The facts as stated in the Court's opinion are as follows. The defense attorney sent over a settlement agreement with a full release of claims pertaining to all defendants. The plaintiff's attorney immediately contacted the defense attorney expressing disagreement with the release of all parties specifically stated that it was not agreed or anticipated that Jones-Wilson (Defendant) would be released under the settlement agreement.

It appears from the Court's opinion that the plaintiff's attorney communicated to the dense attorney that his client would not sign the release due to the release of Defendant. He expressed to the defense attorney that this had never been part of the negotiation. Because the parties could not agree on the settlement terms, the plaintiff filed suit. After a suit was filed, Defendant filed a motion to enforce the settlement agreement.

The district court judge found that the agreement was enforceable. This is rather surprising in light of the fact that the negotiations were strictly oral in nature and the agreement had not been signed. There seems to be no clearer indication of the absence of an agreement than the absence of a signed agreement. Except here where there was also a clear expression that there was agreement.

The Court of Appeals reversed the district court. When a party wants to enforce a settlement agreement, that party must prove that the opposing party agreed to the settlement. The opposing party is the client in these cases, not the attorney. The client must give his or her or her attorney express permission to settle a claim. In the absence of authority, any settlement that the attorney agrees to is invalid unless the client then subsequently ratifies it through signature of the agreement.

The court further stated that the party seeking to enforce the agreement "has the burden of establishing assent by the opposing party...and that if there is an issue as to whether there was authorization, the party seeking enforcement of an alleged settlement agreement has the burden of establishing authorization."

Since the burden rested with the defendant in this case, he was required to provide evidence that the plaintiff's actions or his attorney's actions would indicate that authority existed to settle the claims against the defendant. In this case, it was found that there was no such evidence and at least in this case the defendant's attorney could not have possessed any information about the plaintiff's wishes or his communications thereon to his attorney.

The Court got to the heart of the matter when it stated:

"Oral settlement negotiations provide fertile ground for miscommunication or misunderstanding, and it is not surprising that two parties to a phone call would have different perceptions of the agreed-upon terms. As a result, it makes sense that the law requires some affirmative indication from each client that his or her attorneys had the appropriate authority to settle before a settlement agreement is enforced."

In fact, it would be an odd outcome to allow parties to be bound strictly by unsubstantiated one-sided assertions of an oral agreement made over the telephone. This would obviously lead to all manners of abuse. Best case, there might be innocent misunderstandings regarding the terms of settlement. Should an innocent misunderstanding committed to writing then be fully enforceable? If the answer is yes, how then does one distinguish between the innocent misunderstanding and the many other varieties?

Related Reading:
Payment of Medical Expense Is Not an Admission of Liability in New Mexico
"Full and Final Settlement" Means Both Full and Final in New Mexico Personal Injury Claims
Personal Injury Judgments: Winning and Collecting Can be Two Very Different Things

Collins & Collins, P.C.
Albuquerque Attorneys

There are a number of important deadlines in personal injury lawsuits. The first and perhaps most important is the statute of limitations. Missing this deadline will bar your claim completely.

Statutes of limitation are laws placing specific time limits on when an individual can file a lawsuit. Different time restrictions apply depending on the legal matter in question--from contract disputes and personal injury to medical malpractice and defective products.

All of these different areas of law have one thing in common: Failing to file suit within the statute of limitations with few exceptions acts as a complete bar to recovery. Consequently, it is vital to understand exactly what limits apply in your case so that your legal rights are preserved.

The time limits that apply in each case depend on various factors, including the type of legal claim, the subject matter of the claim, the plaintiff(s) the defendant(s), in some cases the maturity or mental capacity of the plaintiff.

Basic Rules
In general, with the exceptions set forth below, the statute of limitations in personal injury cases is three years from the date of the injury. Personal injury cases usually include a veriety of claims including automobile accidents, medical malpractice, dog bites, slip and fall cases, and many other types of accidents. The same three year time limit applies to each with .

However, it is critically important not to rely on the assumption that you have three years after one of these injuries to file a claim. That is because there are many different rules that apply depending on the party named as a defendant and the capacity of the individual hurt.

Additional Rules
-Children/Incapacitated: Special rules apply to children and those who are incapacitated. (NM Stat § 31-1-10) Instead of having three years to file a claim following an injury, they have one year following the "termination of such incapacity" to file the lawsuit. For children that means that they have one year following their 18th birthday to commence the legal action. Therefore if injured children are involved, parents should not wrongly assume that their claim is time barred, even if it has been years since the injury. However, as you will see, there are exceptions to this exception as well.

-Medical Malpractice: There are a number of special rules for medical malpractice claims. patient harmed by medical negligence generally has three years to file suit. However, in medical malpractice cases the special rules for children do not apply the same way (NM Stat § 41-5-13). The New Mexico Medical Malpractice Act alters the time limits when the defendant is a "qualified healthcare provider." In those cases the only special protection for minors is, if they are 6 years old or younger, then they will have until their 9th birthday to file suit. In other words, if a child is hurt by medical negligence when they are 4 years old, they will have 5 years (until their 9th birthday) to file suit. However, if a child is hurt when they are older than 6, then they only have the same three years to file--the statute is not tolled.

-Against Government: Many very restrictive rules apply in most legal claims where a government entity (or public employee) is named as a defendant. Most importantly, a party generally has to give notice (Tort Claims Notice) of the claim within 90 days of the incident to a designated official for the public entity to be named. This is a short time-window, meaning those who have a suit potentially involving a public entity must act quickly to preserve their rights. Assuming that the 90 day notice was given, plaintiffs then only have two years after the incident to file suit. The only exception applies to children under 7 years old, who will always have until their 9th birthday in which to file suit (similar to the medical malpractice rule) (NM Stat § 41-4-15).

Considering the complexity of some of these timing rules it is absolutely essential for those hurt by the misconduct of others to visit with an experienced accident and injury attorney as soon as possible to ensure the right to seek redress is not lost.

Related Reading:

Extension of Statute of Limitations in New Mexico for Cases Originally Filed in the Wrong Court

Medical Malpractice Claims Raise Unique Statute of Limitations Issues

Tolling of Statute of Limitations is Rare

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals recently held in Foster v. Sun Healthcare Group that unless there is a clear showing of negligence in prosecution, a plaintiff who brings suit in the wrong court has six months to bring suit in the correct court, even if the statute of limitations for the claim has run.

Personal injury and other tort claims must be filed in a court that has both subject matter and personal jurisdiction to hear the case. Many civil cases are brought in state court. However, a federal court may have jurisdiction if the case involves a federal question or diversity of citizenship between the parties. For a federal court to have diversity jurisdiction, the parties must be residents of different states or a foreign country. If a corporation or other non-person entity is a party to the case, the home state of the corporation is determined by several factors including the state of incorporation, the location of its headquarters, etc.

"Saving statutes" are state laws that are meant to give citizens broad access to the state court system. New Mexico law contains a saving statute, NMSA 1978, §37-1-14, which allows a second suit to be brought within six months of the first suit if it was brought in the wrong court, regardless of whether the statute of limitations on the claim has run. However, a plaintiff cannot take advantage of the saving statute if the plaintiff was negligent in prosecuting his or her case.

According to the Court, a plaintiff is negligent in prosecution when he or she fails to exercise due diligence. A failure to exercise due diligence occurs when, at the time of filing a lawsuit, a plaintiff knows or should have reasonably known that the court lacked jurisdiction over the case. If a plaintiff files in the wrong court, the plaintiff's mistake must have been an honest mistake and the suit in the wrong court must have been initiated with the good faith belief that the court was proper in order to take advantage of the saving statute.

In Foster v. Sun Healthcare Group, the Plaintiff filed his medical malpractice suit in federal court in a timely manner, within the three-year statute of limitations. The Plaintiff's original complaint claimed that the federal court had diversity jurisdiction over the case. Once the federal court found that it did not have jurisdiction over the case, the three-year statute of limitations had run. However, availing himself of the New Mexico saving statute, the Plaintiff filed suit in state court.

The defendants were granted summary judgment by the state court based on the statute of limitations and the claim that the Plaintiff was negligent in prosecution and therefore not allowed to use the saving statute. The New Mexico Court of Appeals disagreed. The Court stated that the defendants were unable to show evidence that the Plaintiff knew or should have known that diversity jurisdiction in fact did not exist. For this reason, the Plaintiff was not negligent in prosecuting his case and could take advantage of the saving statute.

Jurisdictional matters can be complicated and difficult to navigate. An experienced attorney will ensure that you file your case in the proper court and inform you of all of your rights and options.

Related Reading:
Medical Malpractice Claims Raise Unique Statute of Limitations Issues
Statute of Limitations on Past Denial of Uninsured/Underinsured Motorist (UM/UIM) Coverage in New Mexico
Tolling of Statute of Limitations is Rare

Collins & Collins, P.C.
Albuquerque Attorneys

Personal injury cases, especially those involving large insurance companies, can become extremely antagonistic. Sometimes, defendants will go to great lengths to avoid paying a personal injury claim. Many insurance companies conduct what has come to be called "disability video surveillance" in the hopes of proving that a plaintiff does not in fact suffer the injuries claimed.

While many individuals may consider being videotaped to be an obvious invasion of privacy, the law in New Mexico and other states allows insurance companies to videotape claimants without their knowledge and use it against them in court as long as they stay within certain limitations. Not only is it legal, it is allowable under the rules of discovery and admissible in court under the rules of evidence.

While private video surveillance of a person in their home or private place of business is not allowed under federal and New Mexico law, videotaping a person in public is perfectly legal. If a person works in a public place, like a restaurant or hotel, they can also be videotaped at work. Often times, plaintiffs are videotaped in their yard performing yard work, gardening or other physical activities. If in a public place, the person being videotaped does not have to be aware of being videotaped and does not have to consent to being videotaped.

However, if the videotape is going to be used in court, the New Mexico and federal rules of evidence place several requirements and limitations to its use. First, a videotape of a plaintiff is admissible in court if it is relevant to the case at hand. Evidence is relevant when it tends to make the facts of a case more or less likely. A video recording of a plaintiff can be relevant if it shows the extent of their injuries, how the injuries impact the plaintiff's daily life, etc. Second, under the rules of evidence, a defendant cannot simply state that there is a video recording of the plaintiff, but must provide the actual recording as evidence. Third, under the "rule of completeness" a party cannot just submit into evidence an edited version of the recording, but must submit the entire recording upon the other party's request.

Keeping this in mind, it is important to be aware of certain issues. Insurance companies rarely do the actual videotaping and surveillance. Instead, they contract local private investigators who are more familiar with the area and with surveillance techniques. In Albuquerque and New Mexico there are a very large number of private investigators who name "insurance fraud surveillance" as one of their specialties. For this reason, persons involved in a personal injury claim are advised to assume that they are being videotaped any time they go out in public.

And keep in mind, the video will not be shown in the most favorable light to the plaintiff so that even seemingly innocuous activities such as carrying groceries may be distorted to make the plaintiff appear dishonest. This should not be taken to mean that one should not carry groceries, do yard work or anything else. It simply means do not say you can't due to your injuries when you can. Exaggerating injuries is never good for a claim.

According to some personal injury attorneys, there are times when a plaintiff is most likely to be videotaped. These include the days and weeks surrounding a requested independent medical examination and during the days and weeks surrounding an interview. Surveillance is also likely in the months before definitions of disability are set to change.

Even though it may seem unfair, the law is that if a plaintiff is in a public place an insurance company or any other type of defendant can place him or her under video surveillance. Keeping this in mind, it is important for personal injury claimants to be aware of their actions and surroundings at all times during this process. These are issues that should be discussed with a personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

The use of social media by jurors has been a hot topic in the courts over the last couple of years. The explosion of smart phones, mobile access to the internet and social media is causing new and unique challenges to the courts, particularly in the case of jury trials.

Over the past year, there have numerous cases challenged and some overturned due to juror use of social media during trial. Juror use of the internet and social media during trial raises a host of problems for both sides of the case. The possibility of undue outside influence on jury verdicts is of great concern to all. Unfortunately, the pace of technology has far exceeded the pace of measures by the courts to protect against it's abuse.

Among the traditional instructions from the court to jurors is that they not discuss the case with others outside the case. This is to protect against improper influence on the juror during a trial. This might arise when the juror has a friend or family member with some experience or expertise with the subject matter in the trial. For instance, a juror might ask an uncle who has retired from the law enforcement or the practice of law about the case. Other times, the juror will call on family members who have engineering expertise or think they do to discuss a products liability claim.

There are countless ways this problem could arise in the past. However, this problem at least would not affect the many trials that lasted only one day, such as most misdemeanor criminal trials and many small civil trials. With the growth of the internet and social media, this too has changed with jurors able to do a little of their own research or even run the case by their Facebook panel of advisors during a break or at lunch. The problem becomes far worse with longer trials and more time to reflect, conduct online research and enlist input from the panel. In short, the problem of outside jury influence has grown exponentially with the growth of mobile technology, the internet and social media. And the problem may be harder to solve than one might think.

Courts have begun to routinely instruct jurors not to do their own research, not to email, text, or post information related to trial during the trial. This has not deterred many. In fact, the problem is so bad that California was compelled to pass a law making it a crime punishable by up to 6 months in jail for using the internet during trial for research or posting trial related topics on any social media site such as Twitter, Facebook, MySpace and LinkedIn. California believed this law necessary due to blatant disregard of judges' instructions by many jurors.

The most obvious question that then arises is whether such laws will prevent jurors from engaging in these prohibited activities during trial. A recent survey points to some challenges the courts will face even with the tool of contempt and jail to deter these practices at their disposal.

Several sources have noted a recent McCann survey of 6000 people aged 16 to 30 found that 53 percent of respondents would rather lose their sense of smell than access to social networking. Perhaps these folks simply do not appreciate the importance of the sense of smell. Or the survey may have had some design issues that would lead to such surprising results. Several sources raise this issue in noting that 67 percent of those in the survey would also give up their genitals for a Klondike bar, also a surprising result in most circles.

Notwithstanding the possible glitches in the survey, the results do not bode well for future jury deliberations. With the rise of texting, smart phones, mobile access to the internet and social networking, one does not need to look far to see the problem ahead. For many parents, one need look no further than the back seat to see the hold that this technology has on society. For everyone else, just take a peek at the driver in the next car.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent case from the 10th Circuit Court of Appeals illustrates the importance of full disclosure of preexisting medical conditions in a personal injury case. Failure to fully disclose preexisting conditions can result in serious discovery sanctions including dismissal.

The case of Freddie v. Marten Transport involved a 2006 auto accident. The plaintiff, Jerry Freddie, claimed injuries to his head, neck, back, shoulders, and extremities. He claimed that all of these injuries along with associated fatigue and sleep problems were associated with the 2006 accident.

The defendant requested discovery from Mr. Freddie. Included in the discovery request, as is the case in every personal injury action, was a request for disclosure of preexisting injuries and prior medical records. Mr. Freddie denied any preexisting conditions and failed to provide the lawfully requested prior medical records.

In fact, Mr. Freddie had been in a relatively recent rollover accident in 2003 in which he suffered similar injuries. In addition, it appeared from the medical records that the defendant was able to obtain that Mr. Freddie had not fully recovered from those injuries.

Despite the discovery of the prior auto accident and preexisting injuries, Mr. Freddie persisted in his refusal to provide medical records or even to acknowledge the prior injuries. The district court judge ordered Mr. Freddie on several occasions to provide the records. Mr. Freddie refused and even invoked his 5th Amendment right against self-incrimination when asked about prior chiropractic treatment. Oddly, Mr. Freddie argued that the did not recall the injuries while arguing at the same time that he did not want to implicate himself in insurance fraud through his testimony on the chiropractic treatment.

The district court finally dismissed the lawsuit for Mr. Freddie's ongoing discovery abuse. The 10th Circuit recognized that dismissal is a rather extraordinary sanction stating that "While discovery-related sanctions are generally permissible to protect the integrity of the judicial process, a sanction of dismissal is reserved for violations 'predicated upon willfulness, bad faith, or some fault of [the party] rather than inability to comply.'"

The Court set forth five factors to be considered by a trial court before imposing a sanction of dismissal: (1) actual prejudice to the defendant; (2) level of interference with judicial processes; (3) the culpability of the party; (4) prior warning of possible dismissal for non-compliance; and (5) the efficacy of other lesser sanctions.

Interestingly, the court said that there is no rigid test more of less leaving it to the discretion of the trial judge. In this case, the court more or less ignored the last two factors. The trial court did not warn of dismissal in advance. Rather, the 10th stated "[o]nce a witness swears to give truthful answers, there is no requirement to warn him not to commit perjury or, conversely to direct him to tell the truth." Citing Chavez v. City of Albuquerque, (10th Cir. 2005). Nor did the court set forth any possible alternative sanctions short of dismissal. The court stated instead that dismissal has been affirmed for lessor discovery offenses and that this case fell within the range warranting dismissal.

Preexisting conditions, prior injuries and even prior related accidents can most definitely hurt the value of a personal injury claim. In fact, it should come as no surprise that a defendant should not by virtue of a later accident pay for injuries suffered in a prior accident. It is not uncommon for plaintiffs to hide preexisting conditions from not only the defendant but from their own attorneys. As this case illustrates, concealing preexisting can be disastrous.

As much as you think it might hurt your case, and as much as it might actually hurt your case, concealing preexisting injuries will kill your case. Even if it does not get dismissed outright, juries are not kindly disposed toward dishonest plaintiffs. If you have a personal injury claim and you have preexisting injuries, discuss them with your attorney. An experienced personal injury attorney will address them directly in a way that minimizes the damage to your claims.

Collins & Collins, P.C.
Albuquerque Attorneys

Plaintiffs in personal injury cases, like anyone else, sometimes come with some baggage. On occasion, a plaintiff has been convicted of criminal offenses in the past. The question that most plaintiffs in this situation will want to know is whether these past legal transgressions can be held against them in their personal injury case.

Most plaintiffs in this position would rightly argue that a criminal conviction in the past has nothing to do with an auto accident today. They are partly right. The past criminal conviction is not particularly relevant to the determination of liability and/or damages in a personal injury action.

However, a past conviction though seemingly unrelated to the accident may come up with issues of credibility. For instance, if liability or damages are disputed, and a case goes to trial, a jury is basically asked to make determinations of credibility. In other words, who should the jury believe, the plaintiff or the defendant?

The rules of evidence regarding impeachment address these issues. Rule 609 of both the Federal and New Mexico Rules of Evidence address the admission of convictions for the impeachment of witnesses at trial. In other words, the rule addresses whether evidence of conviction is fair game for showing or more accurately suggesting a witness is lying. The rules apply to all witnesses including the plaintiff and the defendant.

Rule 609 provides that evidence of convictions can be admitted to attack the credibility of a witness was convicted of a felony or a crime of dishonesty if the court finds that its probative value is not outweighed by its prejudicial effect. Notably, evidence of a felony is more likely to be excluded than a misdemeanor crime of dishonesty.

To the chagrin of many witnesses, including plaintiffs in a personal injury case, crimes of dishonesty cover a lot of ground and include some seemingly innocuous offenses. Certainly, "crime of dishonesty" would encompass fraud, forgery, theft, burglary, perjury, false tax returns and so on. It also includes petty shoplifting among other petty offenses.

Many plaintiffs do not particularly want to share these embarrassing details with their lawyers. Any plaintiff would be well advised to assume that the defense attorney is going to do a thorough background check and will discover any and all past criminal convictions. The only thing worse than having this evidence admitted against a plaintiff is having the defendant show to the jury through cross examination that the plaintiff has lied about the past convictions. Now the plaintiff is both a crook and a liar in the eyes of the jury.

The best approach is typically for the plaintiff's attorney to address these issues with the jury from the start. It allows the evidence to be presented in the best light to the plaintiff. Most importantly, it takes the wind out of what will surely be penetrating cross examination and a blustery closing argument impugning the honesty of the plaintiff.

Collins & Collins, P.C.
Albuquerque Attorneys

In litigation of any kind, often the most time-consuming, expensive and frustrating task is discovery. Many times, parties and or their attorneys simply will not cooperate in the discovery process. The 10th Circuit Court of Appeals in Lee v. Max International has ruled that failure to abide by the rules of discovery can result in the dismissal of a claim.

In the Max International case, the plaintiff failed to provide lawful discovery. Some of the missing discovery items were tax returns which are readily available and easy to provide. The defendant was forced to file several Motions to Compel Discovery, each time resulting in an order from the district court directing plaintiff to provide the discovery. In fact, there were two such orders both of which the plaintiff failed to follow. The district court dismissed the plaintiff's claims.

The 10th Circuit affirmed the dismissal stating that "Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation."

The plaintiff did not deny that it had failed to abide by the court's orders. In fact, the plaintiff had issued a certificate stating that all discoveries had been provided. The 10th Circuit Court of Appeals took particular exception to the false certificate filed by the plaintiff.

The Court further ruled that the district court will be allowed considerable discretion in the issuance of discovery sanctions, including the rather extraordinary sanction of dismissal. Citing Charles Alan Wright in support of the district court's broad discretion, the Court stated "the district courts must have latitude to use severe sanctions for purposes of general deterrence."

The Federal Rules of Procedure are intended to ensure "the just, speedy, and inexpensive determination of every action." The Court recognized that this is far from the reality but recognized also that allowing parties to repeatedly violate orders from the court would most assuredly defeat those purposes.

Max International will certainly not stop discovery abuses. However, the Court's suggestion that the district courts have wide discretion in doling out even extreme sanctions for discovery abuse should at least cause some pause for those parties and attorneys that engage in such practices.

Collins & Collins, P.C.
Albuquerque Attorneys

In auto accidents cases, one might expect that the driving record of the negligent driver would be fully admissible at trial to help show that the person was at fault for the subject accident. Unfortunately, this is not always the case.

For instance, pre-accident driving records are not admissible to show the driver was negligent in the current accident. However, it may be admissible for other purposes such as a negligent entrustment claim. A negligent entrustment claim most often arises where an employer allows an employee with a bad driving record to drive a company vehicle. The company may then be held liable for any injuries or other damages caused by the employee under a negligent entrustment theory.

Post-accident driving records, no matter how bad, are often inadmissible at trial. Neither past driving behavior nor future driving behavior can be used to show the person was negligent in the current auto accident. Neither may future driving be used to prove a habit of bad driving under New Mexico law. Finally, unlike past driving behavior, future driving is not admissible on a negligent entrustment claim.

In order to show negligent entrustment, the company must have known of the employee's negligent driving habits. The company may be held to knowledge of the employee's prior driving behavior. This is the case even if the company does not have direct knowledge but could have discovered the driving history through background checks.

On the other hand, an employer cannot be imputed knowledge of bad driving habits based upon future driving behavior. Thus, without more, the employer will not be held liable under theories of negligent entrustment for the employee's actions in causing an auto accident. The employer may very well be liable on a number of other grounds, but not by way of negligent entrustment.

In short, though one might expect the driving behavior of a negligent driver to be most relevant evidence to prove fault, there are fairly strict limits on when and for what purpose driving behavior is admissible at trial in a car accident case. The injured person may simply have to rely on other evidence of fault than the driving history or driving habits of the other driver.

Collins & Collins, P.C.
Albuquerque Attorneys

Spoliation of evidence, or more commonly understood destruction of evidence, can result in the dismissal of a homeowner's claims against a negligent builder, subcontractor, architect, engineer or other party responsible for a new home's defects. The obvious question is how would spoliation of evidence occur?

The answer is that it could occur quite innocently. Whenever a homeowner takes it upon him or herself to repair problems, there is the possibility that evidence will be destroyed. Perhaps more accurately, it is possible that the negligent defendant will assert a defense of spoliation of evidence purely as a tactical matter. In fact, this defense is preached by the construction defense bar knowing full well that many homeowners will take action to repair or fix their most valuable asset rather than standing idle waiting for the contractor the fix the problem.

Many times, homeowners meet with delay after delay in addressing their problems with contractors or builders. Their grievances are routinely ignored. And why not, if the homeowner finally and predictably takes action on the problem, the contractor now has one more line of defense against a construction defect lawsuit.

To avoid the possibility or suggestion of spoliation of evidence claims, the homeowner should contact the builder or contractor immediately in writing with a detailed description of each and every defect. The injured homeowner must give the defendant notice of any intended repairs. Finally, the plaintiff must give the contractor, builder or other defendant the opportunity to inspect the defects themselves prior to any such repairs by the homeowner.

Once notice of repairs and opportunity to inspect is provided, the homeowner should document both the original defects and the repairs very carefully. As one might expect, the contractor or builder is likely to have a very different view of what happened partly due to their own self-interested documentation of the problems and the fixes. It is safe to say that these problems and repairs can never be over documented, but they most certainly can be under documented.

Once again, failure to provide notice and opportunity and to carefully document the defects and the subsequent repairs will undoubtedly lead to the spoliation of evidence defense. Careful attention and documentation should cut off this defense. Failure to provide notice and opportunity to inspect can and does lead to a dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

On occasion, a party responsible for an accident and personal injuries will offer to pay for medical expenses related to the injuries. This most often occurs in slip and fall accidents at retail establishments. It is just as common that the party later reneges on the agreement. On the rather rare occasion when the negligent party does pay for expenses, the question of liability and damages is still not necessarily settled.

In most cases involving personal injuries, there is some type of insurance involved. This certainly true of slip and fall accidents Insurance companies are not prone to pay out money on medical expenses or any other damages in the absence of liability on the part of their insured. In case of slip and fall accidents, it seems as common as not that the promise to pay is simply a ploy to get the customer out of the store as quickly as possible. In other types of accidents, there may at first be an admission of liability with a later denial once the full scope of damages is known. In other words, they may accept liability on what they believe to be a small claim which is fact turns out to be a large claim.

This can be both perplexing and frustrating to an injured plaintiff. Yet it is generally allowable under the law. In fact, it is codified in Rule of 409 of both the New Mexico and Federal Rules of Evidence. Rule 409 states; "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expense occasioned by an injury is not admissible to prove liability for the injury."

What this means in practice is that a plaintiff cannot use the payment of medical expenses by the negligent defendant at trial for purposes of proving responsibility or liability for the injuries. The payment of medical expenses may be used at trial for other limited purpose but not for showing liability.

The Rule purports to serve a very valuable purpose. After all, it is said that the law does not want to discourage payment of medical expenses even where those expenses and the related injuries are in dispute. The rule allows the payment of perhaps disputed medical expenses in turn providing for the medical care of an injured party.

On the other hand, it is extremely rare where a defendant, particularly an insurance company, would pay out damages early in a case on disputed claims. Instead, the insurance company would want a release of claims in return for the quick and cheap settlement of disputed claims. This is far more common and occurs with some regularity.

In cases of real personal injuries, a quick and cheap settlement is generally going to be far more advantageous to the insurance company than to the plaintiff. After all, insurance companies and defendants generally are not in the business of philanthropy and they unlikely to offer to pay medical expenses out of the goodness of their hearts. This brings us back to where we started which is insurance companies are not inclined to pay out disputed claims yet the payment of these claims cannot be later used against them at trial.

Collins & Collins, P.C.
Albuquerque Attorneys

The contingency fee arrangement plays a pivotal role in allowing personal injury plaintiffs access to the courthouse. In fact, without contingency fees, injured persons would for the most part have absolutely no recourse for their injuries and damages.

Of course this is what defendants would like to see. This explains the unrelenting attacks on trial lawyers by insurance companies, the Tort Reform movement, the U.S. Chamber of Commerce, and a long list of so-called small business advocacy groups.

The arguments have been so persistent and so loud for so long that many have taken their truth for granted. In fact, the arguments for tort reform and personal injury liability caps are based largely on myth. These myths were hatched and nurtured by these groups who represent corporate America and the insurance industry. The goal is maximize corporate and insurance industry profits with little regard for the safety of the public. In short, the goal is to keep injured persons out of court.

Among the greatest myths, and one that is particularly popular even among the public, is that the greed of trial lawyers is draining small business. Because the myths and misrepresentations are so numerous and profound, it is really hard to rank them in order of deception. However, this myth ranks at or near the top.

The focus of the "greed" argument has been on the contingency fee arrangement. Remarkably, the very conservative Fourth Circuit Court of Appeals shot down this argument in the 2010 case of Pellegrin v. National Union Fire Insurance. The case involved a $18 million auto accident settlement on behalf of Mark Pellegrin who suffered severe and permanent brain injuries, and quadriplegia. His injuries were so great that he can communicate only through facial expressions. He will be totally dependent for life upon the care of others for even basic necessities such as bathing and feeding.

Liability was hard fought by the insurance companies. According to the two plaintiff's attorneys, permanent, each had spent over 1000 hours of time on the case. There was a standard one-third contingency fee arrangement. Over the strong objections of the plaintiff's father and guardian, the district court reduced the fee to a mere 3%.

The plaintiff's were forced to appeal to the 4th Circuit Court of Appeals. The 4th Circuit is notoriously conservative and the plaintiffs were rightfully extremely concerned. In addition, Public Justice became involved fearing that the 4th Circuit would use the case as a platform for a full frontal assault to the contingency fee arrangement.

To the surprise of all on the plaintiff's side, the 4th Circuit reversed the district court's ruling. The Court repeatedly recognized not only the importance but the absolute necessity of the contingency fee arrangement to allow injured individuals their day in court. The Court noted that this case in particular illustrates the reality that an injured individual would have absolutely no recourse for his or her injuries in a case like this. Clearly, there are very few if any other than corporate plaintiffs that would have the resources to pay for thousands of hours of attorney time not to mention the enormous litigation costs associated with suits of this nature.

Of course, this is well known to the Tort Reform movement. In their perfect world, the courts would be a playground for only the rich and powerful. And perhaps most importantly for all those skeptics out there, the millions of dollars of lifetime medical care for Mr. Pellegrin and others like him would be left to the taxpayer.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent New York Times artilce illustrates the predatory nature of personal injury lawsuit funding companies. The article cites instances where plaintiffs ultimately turned over almost their entire settlement or judgment to the lawsuit lenders.

The lawsuit lenders like to call themselves investors. In fact, they are highly predatory lenders. They argue that lawsuit lending is more akin to venture capital than lending. They justify interest rates of up to 100% a year on the rationale that they are at risk of not getting paid back at all.

In reality, most of these companies screen their cases with extreme care. The Times article suggested that the companies will refuse loans on 70% of the applications and then loaned on 10 to 20 percent of the expected recovery. In short, they are looking for slam dunk settlement cases. And, in fact, it is not terribly difficult to evaluate the likelihood of recovery on most cases.

If nothing else, these companies could use programs like the insurance industry's Colossus software for evaluating claims. This software is used by a large number of auto insurance companies. Upon entry of the specifics of an auto accident, the software spits out a settlement range. To the chagrin of many injured persons and their lawyers, there are some insurance companies that will not budge off these very conservative settlement value estimates.

Even without a program like Colossus, cases with high and/or certain settlement value are not hard to spot in most routine personal injury cases. There are others such as medical malpractice and products liability that are more difficult to evaluate and fairly risky to undertake. However, if these companies are truly screening 80% of the cases from eligibility, then it would seem that they are instead focusing on the sure cases with very little risk of loss.

Yet they continue to charge rates up to 100% annual interest. To further illustrate the point that these are low risk, extremely high interest predatory loans, the Times cited one industry leader who stated, "We don't want judges to shine a light on us." To avoid scrutiny from judges who often will refuse to enforce these predatory loans, many of the lenders will loan only on those cases that have a high probability of pre-trial settlement. In others words, they make only very low risk loans or "investment."

What does this mean for you and your personal injury claims? It means that if the company is willing to lend to you, by definition, you should not take their loan. The fact that they have approved the loan suggests that your case has a very good chance of pre-trial settlement.

If you are truly desperate for funds, then you might consider lowering your settlement demand to facilitate a more rapid settlement. This would be a more prudent and far less financially detrimental route than ultimately turning over your settlement to a lawsuit lender.

Collins & Collins, P.C.
Albuquerque Attorneys

The statute of limitations in most personal injury cases is 3 years from the date of the incident that caused the injuries. In cases against state, county and local governmental entities, the statute of limitations is only 2 years.

Failure to file a suit within the statute of limitations bars a lawsuit completely. In other words, if you do not file within the statutory period, then you cannot file the lawsuit at all. The statute of limitations is harsh and a personal injury plaintiff should not flirt with these deadlines.

There are some rare cases where the statute of limitations may be extended or tolled. These are extremely rare and an injured plaintiff would be well advised not to place any reliance on these exceptions to the statutory deadlines.

Perhaps the most common situation where the statute of limitations would be extended is in cases where the injured party is unaware of the injuries. This often arises in cases of medical negligence. After all, for instance, the patient may not know of a surgical sponge left inside them for years following the surgery.

An injured person may also be unaware of his or her injuries in cases of product defects. Often these too are associated with a medical malpractice claim. The best example currently in the news are the hip replacement recalls from Depuy . There are many other surgical products that have caused injuries to patients which were apparent only years after the surgery.

The same type arguments hold for numerous pharmaceuticals both past and present that have been found to cause serious personal injury to patients. There are currently recalls with either pending or possible lawsuits involving Yaz, Nuvaring, Accutane, Darvon, Darvocet, Gardasil, Fosamax, and Paxil to name only a few. For each, patients may have taken the drugs for years before realizing the harm that the drugs caused. Some may have ceased using the medications long before knowing of their injuries.

There are certainly other situations where an injured party may not be aware of his or her injuries until months or years after the incident. Keep in mind, however, that ignorance of the injuries alone is not sufficient to toll the statute of limitations. If the injured person should have known of the injuries, then there will be no tolling of the statute of limitations. By way of example, this is true in New Mexico even where there are differing medical opinions regarding the source of the injuries.

The bottom line is the statute of limitations is real and it is rigid. There are very few exceptions. It would be exceedingly unwise to ignore an injury or illness that may have been causes by medical negligence, a product defect or any other cause. It is entirely possible that ignorance of the cause may not be grounds for tolling the statute of limitations.

If you are injured or sick and you believe it was caused by the products or actions of another, then seek a medical opinion immediately. If there is more than one possible cause, then it may unfortunately be necessary to sue them all and sort out the causation through litigation.

Collins & Collins, P.C.
Albuquerque Attorneys