Vehicle accidents not only hold the possibility of a serious injury or death but also may take a great emotional and financial toll. When individuals have been involved in an accident, it is incredibly important that a determination of fault, often through an investigator, takes place. Although many people are under the impression that the fault determination is decided through a police official, it is actually more often than not conducted by an insurance company. The insurance company will investigate the circumstances surrounding the accident and will determine the fault of the parties. The importance of having your own advocate and investigator in these situations cannot be overemphasized.

wrecked-car-2-1479823To determine fault, in New Mexico, the investigator has to decide which individual breached a duty of care that resulted in the other person’s injuries. The insurance company will rely on the initial police reports and statements from witnesses and those involved in the accident.

After the insurance company determines who was at fault in its opinion, it will next apportion liability to the parties it finds responsible. As of 2012, several states, including New Mexico, follow the comparative fault standard. Under this theory of liability, a person’s damages award is reduced by the amount of fault that is apportioned to them.

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The Supreme Court of Arizona recently released its opinion in a consumer fraud and product liability case brought by a young woman who was diagnosed with drug-induced lupus after taking an acne medication. The young woman was prescribed a specific medication to treat her acne. She did not receive the full packet of information about the drug but did receive some information. The woman used the product for about four months, and then two years later she took it once again for about another four months. Shortly after being prescribed the medication for the second time, she was hospitalized and diagnosed with drug-induced lupus and hepatitis. Evidently, both of these conditions are a side effect from using the medication.

medication-1329267The young woman brought a lawsuit seeking compensatory and punitive damages, claiming that the pharmaceutical company misrepresented and omitted certain important facts in the information it provided to her. The defendants moved to dismiss the case under the “learned intermediary doctrine,” and the lower court agreed to do so.

However, on appeal, the Supreme Court of Arizona reversed that decision. The Supreme Court held that the learned intermediary doctrine does not prevent the plaintiff from suing the company, and the plaintiff alleged enough facts to survive a motion to dismiss.

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The Supreme Court of Montana recently released an opinion in an accident case dating back to 2012. The plaintiff in this case was stopped in a traffic jam when the defendant slammed into the back of the plaintiff’s car, causing a domino effect in which the plaintiff ended up hitting the car in front of him. The defendant admitted negligence, and the plaintiff filed for damages. The plaintiff argued that they suffered a series of serious physical injuries, and as a result they brought a claim for those physical injuries in addition to emotional distress, medical bills, and loss of income.

courtroom-1-1236725The lower court in this case awarded the plaintiff around $3,000 after factoring in payments she already received. The plaintiff was not satisfied with this amount and appealed the case to the state supreme court. She argued that the court erred when it excluded testimony from her physician and physical therapist. Additionally, she claimed that the court erred by granting a directed verdict related to her injuries and then concluding that she was not owed damages related to her loss of business. The court did not find that the lower court abused their discretion when they rendered their evidentiary rulings.

The Importance of Expert Witnesses in a New Mexico Personal Injury Case

Like attorneys, experts are an indispensable tool when pursuing a claim for personal injuries following an accident in New Mexico. In some cases, it is required that individuals who have been injured have expert witnesses to substantiate their injuries. Expert witnesses are almost always needed when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence.”

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After an individual has been injured in an accident, they often suffer damages, ranging from physical injuries to property damage. Under New Mexico law, the victims in these cases deserve to be compensated if their injuries stem from the negligence of another. A judge or jury will generally decide the amount of damages to which the victim is entitled.

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There are two main types of damages, compensatory and punitive. Compensatory damages are designed to make the “victim whole again.” Under compensatory damages, an analysis is done to determine the economic losses and non-economic losses that the victim suffered. An economic loss includes things such as lost earnings, lost wages, and past and future medical expenses. Non-economic losses include the emotional aftermath that a person has to endure due to the accident. This encompasses pain and suffering, loss of consortium, and loss of the enjoyment of life.

A third type of damages is punitive damages. New Mexico is very reluctant to award punitive damages, and the standard that gives rise to this sort of damages is difficult to meet. Unlike the damages discussed previously, punitive damages are unique in that they are solely designed to punish and deter the wrongdoer.

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The United States Court of Appeals for the Tenth Circuit recently released its opinion in a negligence lawsuit brought after a woman was tragically killed in a rafting accident. The court ultimately determined that the plaintiff’s lawsuit must be dismissed because she signed a valid waiver form prior to embarking.

rafting-1560661In the case, Espinoza v. Arkansas Valley Adventures, the plaintiff booked a family adventure through the Rockies that included a rafting trip and camping excursion. As the woman was rafting, their vessel unfortunately capsized. All of the other members of the raft were fished out of the water by staff members. However, the woman was swept up into a logjam and tragically drowned.

The woman’s son brought a negligence and fraud lawsuit against the company. The company responded with a motion for summary judgment, claiming that the family signed a valid waiver of liability. The lower court agreed that the waiver was valid and upheld their motion for summary judgment. The plaintiff then appealed to the Tenth Circuit, which agreed with the lower court, citing the validity of the waiver and policy concerns.

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Product liability cases are often quite complex because there are usually several parties involved, each of which is likely trying to impute liability to another party. After an individual has been injured by a dangerous product, they may try to bring a lawsuit against the manufacturer of a product. And in certain cases, the law is clear when attributing liability. However, there are many issues that arise in these product liability cases.

ignition-key-1473503One issue that can arise in a product liability case is the notion of “legacy equipment” liability. This theory addresses what a manufacturer’s liability is for older versions of its products, when there have been more recent developments in safety. This is commonly seen when individuals have been injured because of a defective car part that has since been replaced by the manufacturer.

Some states have addressed this issue clearly. However, New Mexico has not specifically implemented a statute to resolve this issue. Two prominent cases, Brooks v. Beech Aircraft and Couch v. Astec, did not directly answer the question. However, the issue was discussed in each of these two opinions. Both of those cases revolved around injuries that could have been prevented with the use of a safety mechanism that was later implemented in subsequent models.

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Hit-and-run accidents occur when a driver flees the scene after being involved in an accident. While people may be tempted to flee out of a fear of liability for the accident, leaving the scene of an accident is illegal and can carry serious consequences.

parking-lot-1446642In New Mexico, it is illegal to leave the scene if you were involved in a car accident. This is true even if no one was injured. If two drivers have been involved in a car accident, both drivers must stop their cars and give the other driver and any injured persons their contact information, vehicle registration number, and insurance information.

Even if a driver damages a parked car, and no person is present at the time, the driver must attempt to locate the driver or owner of the car. If the driver or owner cannot be located, the driver is obligated to leave a note with his contact information, insurance information, vehicle registration number, and the contact information of the car owner.

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In personal injury cases, many people think of their attorneys being most useful during examinations of witnesses and closing arguments. However, one very crucial part of a trial is in the crafting of the jury instructions. Jury instructions can drastically change the outcome of a case because jurors are laypeople who do not necessarily understand the law as it is explained to them by the judge. An attorney can make sure that fair and comprehensible jury instructions are given.

hammer-to-fall-1223606Jury instructions are rules that jurors are required to follow when they are deliberating on the outcome of a case. These instructions will determine how the jury decides who is liable and which types of damages should be awarded.

In most circumstances, jurors are the trier of fact, and they must be able to glean a clear picture of the case at hand by contemplating a significant amount of evidence. Almost all states, including New Mexico, have a model set of jury instructions that a judge should to convey to the jury. One common example of a jury instruction in the criminal context would be when a judge explains to the jury that the refusal of a defendant to testify does not indicate guilt. There are instructions specific to certain types of cases, and these instructions are very important when certain evidentiary issues are at stake because these instructions guide jurors to look at the evidence in a specific manner.

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New Mexico has very specific laws that address when sovereign immunity applies and which waivers accompany the statute that was created in the late 1970s. The act that was created to address suits against the government was intended to protect the government from an inundation of legal suits based on actions that are necessary to carrying out the State’s day-to-day business. This act protects the government from being sued without its consent. However, there are still some situations in which this immunity may be waived.

police-car-1515955If an individual wants to file a claim against a government entity, it must be filed within 90 days from the accident that gave rise to the claim. The filing must be very specific, and it has to include many details of the accident. If an individual fails to comply with these requirements, their case will likely be dismissed.

One potential issue with the idea of sovereign immunity is that it may give citizens the idea that the government is not accountable for the tortious acts of its employees, so there is no accountability. In response to that concern, certain waivers to this immunity were created.

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Many people are familiar with the term “pain and suffering” when it comes to damages awards following a successful negligence lawsuit, but not many people know that damages are not always automatically awarded to plaintiffs. There are several different types of damages awards to which a plaintiff may be entitled when a judge or jury finds that a defendant was indeed negligent. There are awards for medical expenses, loss of earnings, pain and suffering, and, in some cases, even punitive damages.

don-t-turn-left-1446780Pain and suffering is just one type of potential damages. This award looks to not only the pain the plaintiff has already endured but also the future pain and suffering they may have to experience. Pain and suffering damages are not clear-cut because pain and suffering is fluid, and it is hard to quantify. Unlike economic damages, they are not dependent on the economic losses a plaintiff may have suffered. Instead, they are solely subjective and at the discretion of the judge or jury.

There are instances when a jury or judge may award compensation for medical bills but then refuse to provide any compensation for pain and suffering. This can result in lengthy motions and appeals. Although it is difficult, it is important that a plaintiff be able to show precisely the type of pain and suffering that they have been suffering or will continue to suffer. Some common ways a plaintiff may do this is by quantifying the amount of pain they are in, by showing how their day-to-day life is affected, or by showing how they can no longer enjoy the activities they used to participate in. They can elucidate their pain and suffering by referring to the injuries, treatment, and future procedures they may need.

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