Negligent entrustment of a vehicle basically means that car owner allows an unsafe driver to use the car. When that driver causes an auto accident, the car owner is responsible for the harm caused. This applies to all owners and innocent victims including employers and employees.

Basic Requirements for Negligent Entrustment Claim

The requirements are seemingly pretty straightforward of a negligent entrustment claim. However, as in all legal claims, the devil is in the details. Here are the basic requirements

  1. There was an accident caused by the driver,
  2. The owner permitted the negligent driver to use the vehicle, and
  3. The owner knew or should have known that the driver would operate the vehicle in a negligent manner causing unreasonable risks to others.

Each of these can get more complex and contentious when it comes to proof that these requirements have been met.

Proof of Negligent Entrustment

To prove negligent entrustment, you must show that both requirements have been met. The first need not be discussed since it may be presumed that an accident occurred which is the basis for the negligent entrustment claim.

Permission to Use the Vehicle

Permission to use the vehicle is essential to a claim for negligent entrustment. If the driver took the car without the owner’s permission, there is not negligent entrustment. Permission can get a little tricky to prove.

For instance, in the case of an employer, there may be restrictions or outright prohibitions on driving the car. In that case, there probably no permission. On the other hand, there can be implied permission when there is a pattern or practice that deviates from those restrictions. Implied permission can come in a number of ways.

First, if the restrictions or prohibitions are routinely violated, then implied permission would apply. Second, the nature of the business and purposes of the driver may indicate a reasonable expectation that the vehicle would be driven in an unsafe manner. Although there are many possibilities here, the best example for both of these is DWI driving following company outings or business entertainment. Finally, permission may be implied from conduct, including a lack of objection.

Knew of Should Have Known Driver Was Unsafe

Proof that the owner of the vehicle knew or should have known must be proved as well for negligent entrustment. It may take some coaxing but there are many cases where the owner knew and admits to knowing the driver was unsafe.

On the other hand, there are those that will deny the plain truth. This is where the “should have known” standard comes in. Proving the owner should have known of the dangerous driving habits of the driver is quite a bit easier than proving knowledge in those cases where the owner is dishonest or perhaps just clueless.

Proof of this element can be done through some investigative research on the driver’s driving history, the driver’s history of alcohol and drug use, prior accidents and DWI’s…, and the relationship between the owner and the driver that would suggest knowledge or awareness of the dangers.

Seek Legal Guidance

The elements of proof can get complicated. Trust that the insurance company is going to fight each element. Trust also that the insurance adjuster is not your friend and is not looking out for you. It is important to seek the guidance of an attorney experienced in auto accident and personal injury law.

For cases involving serious personal injuries or wrongful death in New Mexico, Collins & Collins, P.C. can help. We can be reached online or by phone at (505) 242-5958.

Big Pharma’s at it again and this time States are fighting back on corporate shenanigans on Opioids that are costing lives and colossal public resources. Most people who keep up on the news these days know that the United States faces a problem with addiction and abuse to Opiate-based drugs. An article from the Ring Of Fire network drills down on a specific set of Big Pharma culprits and the response led by the Offices of the Attorneys General of 36 States. This is an overdue response to an epidemic of catastrophic proportions.

Specifically, the actions undertaken focus on the depredations of three Pharmaceutical companies; Reckitt Benkiser, Indivior, and MonoSol Rx. Reckitt Benkiser, up until 2009, held the main patent for the production of Suboxone, controlling 85% of the market. When the patent was set to expire in that year the company teamed up with Indivior and MonoSol RX to engage in a bit of what is referred to as “product hopping”. What this entails is that through a minor product alteration a corporation can re-brand an existent product, thereby allowing them to maintain a monopoly. In this instance, Suboxone has been available as a pill. The three companies named petitioned for a new patent involving dispensing of the drug via oral, soluble strips. This repackaging had nothing to do with a concern around public health or of patient well-being and everything to do with the hundreds of millions in profit the companies stood to lose if they didn’t retain a large market share of Suboxone.

The 36 Attorneys General have joined together and filed suit alleging violations of State and Federal anti-trust laws. The aforementioned companies engaged in these practices to curtail the production of generic versions of Suboxone which would have undercut their profit margins. Consumers, over the last seven years, have also been forced to pay inflated prices for the needed drug–Suboxone greatly reduces the symptoms accompanying withdrawal from opiates.

Big Pharma’s Profiteering from a Problem it Helped Create

As reported by both Raw Story and the L.A. Times earlier this year, another corporation, Purdue Pharmaceuticals, was in large part responsible for the epidemic fostered by the false marketing of the drug Oxycontin. Purdue had advised Doctors and Medical Providers that patients would only have to take one Oxycontin pill every 12 hours to alleviate pain. However, this claim was untrue and Purdue knew it. That did not deter the company, in any way, from marketing and distributing the drug widely. Essentially, Oxycontin is a legal form of heroin. Tolerance builds exponentially along the way and withdrawal from the drug is horrendous.  As the Times coverage pointed out, nearly 200,000 people have died from opiate overdoses since 1999 and Oxycontin accounts for a high percentage of those deaths.

According to the Federal Government there are over 2.1 million people in the United States addicted to opiates with approximately one quarter of these being addicted to heroin–the rest are addicted to other prescription opiate-based medications. There’s some cross-over between these groups of people, also. Many people who began their dependency on legal drugs such as Oxycontin were then taken off improperly and they, in turn, continued their substance use by securing drugs from illicit sources.

Across the nation, States and Municipalities are facing colossal problems spawned by the policies and practices of Big Pharma. Clearly, the prime-mover at work in these corporate interests is the placement of profits over the lives of human beings and the communities they live in.

Pharmaceutical Companies Conspire to Keep Opioid Addicts from Getting Help – Now States Are Fighting Back

… is a vital treatment in helping addicts to get the proverbial monkey off their back – and two drug companies have been conspiring to keep the price inflated by blocking the manufacture of generic versions by competitors. Pharmaceutical Companies Conspire to Keep Opioid Addicts from Getting Help – Now States Are Fighting Back

 

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.

DISCLAIMER

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 defense 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?

DISCLAIMER

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.

DISCLAIMER

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.

DISCLAIMER

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

DISCLAIMER

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.

DISCLAIMER

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

DISCLAIMER

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.

DISCLAIMER