NMSC: Independent medical examination may be ordered in workers’ compensation death benefits cases

by Emil J. Kiehne Posted on November 21, 2019

Patricia Lewis was a teacher for the Albuquerque Public Schools. She contracted allergic bronchopulmonary aspergillosis (ABPA) from mold in her classroom in 2011. In 2012, she was also diagnosed with breast cancer and began chemotherapy with an oncologist.

She died in 2014, and her personal representative sought death benefits under the Workers’ Compensation Act, arguing that ABPA was the cause of her death. The employer sought to introduce testimony from the oncologist in support of its contention that the ABPA did not cause her death.

The personal representative argued that the oncologist’s testimony was NMSA 1978, Section 52-1-51(C), which provides that “[o]nly a health care provider who has treated the worker pursuant to Section 52-1-49 NMSA 1978 or the health care provider providing the [IME] pursuant to this section” may testify “at any workers’ compensation hearing concerning the particular injury in question.” The personal representative argued that the oncologist had not treated her ABPA, and that he could not perform an independent medical examination because Ms. Lewis was now deceased.

In Lewis v. Albuquerque Public Schools (opinion by Justice Michael Vigil) held that NMSA 1978, Section 52-1-51(A) provides that a workers’ compensation judge can appoint an independent medical examiner in the event of a dispute about “any other medical issue” in a workers’ compensation case, and that this language was broad enough to support the appointment of an independent medical examiner in a death benefits case. Therefore, the testimony of the independent medical examiner would be admissible under Section 52-1-51(C).

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NMSC: Unfair Practices Act protects consumers, not competitors

by Emil J. Kiehne Posted on November 18, 2019

GandyDancer, LLC and Rock House CGM, LLC are business competitors that provide services to railroad companies. GandyDancer believed that Rock House CGM was not properly licensed in New Mexico, and had misrepresented the nature of its services, which enabled it to obtain contracts with a railroad company. GandyDancer sued Rock House under the Unfair Practices Act, arguing that Rock House’s actions constituted unfair competition that allowed it to acquire work that should have gone to GandyDancer.

In GandyDancer, LLC v. Rock House CGM, LLC (opinion by Justice David Thomson), the New Mexico Supreme Court held that the Unfair Practices Act does not create a cause of action for competitive injury. As originally enacted in 1967, the Act prohibited “unfair methods of competition,” but the Legislature removed that language in 1971. The Court therefore held that the Act no longer allows businesses to sue each other for unfair competition.

In addition, the Court held that allowing business competitors to obtain treble damages awards might make it more difficult for consumers to get relief from an offending business.

The oral argument in this case is worth a listen. Although Justice Thomson’s opinion does not mention this, it turns out that the attorneys for both parties were unaware both that the Act originally prohibited unfair competition and that the Legislature had deleted that provision. The Court found this out by doing its own research, which created an awkward and embarrassing situation for the advocates as they tried to deal with this new information on the spot. Thorough preparation and analysis of the statute’s history could have prevented this situation.

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“Medical damages debate hits NM Supreme Court”

by Emil J. Kiehne Posted on November 7, 2019

Dan McKay has this story in the Albuquerque Journal about yesterday’s oral argument in Siebert v. Okun. The question presented is whether the damages cap in the New Mexico Medical Malpractice Act violates Article II, Section 12 of the New Mexico Constitution, which provides that “[t]he right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.”

You can listen to the oral argument here.

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CA10: Defect in notice to appear for removal hearing was not jurisdictional

by Emil J. Kiehne Posted on November 6, 2019

In Lopez-Muñoz v. Barr (opinion by Judge Bacharach), the petitioner argued that her notice of removal was defective because it failed to include the date and time of her immigration hearing (in a footnote, the Court states that she did receive another notice with that information).

The petitioner argued that this was a jurisdictional defect that allows her to bring a collateral challenge to the removal order, which was entered six years ago. She relied on a regulation stating that an immigration judge obtains jurisdiction when a charging document is filed.

The Tenth Circuit rejected this argument, pointing out that “the term ‘jurisdiction’ is often loosely used for requirements unrelated to an agency or court’s power to act,” and that the regulation’s use of the word here was “colloquial.” In addition, the regulation could not have affected the immigration judge’s jurisdiction because “[i]mmigration judges obtain their powers from Congress, not agency regulations.”

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CA10: District court should hold evidentiary hearing to determine whether trial counsel should have offered evidence of the defendant’s intellectual disability in death penalty case

by Emil J. Kiehne Posted on November 6, 2019

Last week, the Tenth Circuit issued a 95-page opinion in Harris v. Sharp, a death penalty case from Oklahoma. The defendant went to his estranged wife’s workplace and fired gunshots, killing her boss, Merle Taylor. Diana Baldwin had this story in The Oklahoman about this case in 2001.

Judge Bacharach’s opinion for the Tenth Circuit held that the district court should conduct an evidentiary hearing to determine whether Harris’s defense counsel was ineffective for not offering evidence that he was intellectually disabled, which would have prevented him from getting the death penalty.

You can listen to the oral argument here.

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CA10: Destruction of innocent homeowner’s property by police was not a taking

by Emil J. Kiehne Posted on November 6, 2019

The Tenth Circuit’s non-precedential opinion in Lech v. Jackson (by Judge Nancy Moritz) has attracted national attention due to the obvious unfairness of the result — city police destroy a home to arrest an armed criminal who barricaded himself there, but this was an exercise of the city’s police power, not a taking, and therefore no compensation is due to the innocent homeowner.

Robert H. Thomas has some good commentary about this decision here.

You can listen to the oral argument in this case here.

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NMCA: Whistleblower who recovered no damages still entitled to attorney’s fees and costs

by Emil J. Kiehne Posted on November 6, 2019

While employed by the Town of Taos, Joseph Maestas was caught viewing pornography on his work computer, and was fired two weeks later. He then sued the Town under the Whistleblower Protection Act. Although he admitted to viewing pornography on his work computer, Maestas claimed that the Town did not actually fire him for that reason, but instead because he had complained about “mismanagement, waste of finds, and improper road procurement contracts[.]”

The jury agreed with Maestas but awarded him no damages.

In Maestas v. Town of Taos (opinion by Judge Briana Zamora), the Court of Appeals rejected Maestas’s claims: (1) that the district court erroneously instructed the jury that it did not have to award any damages; (2) that the district court’s admission of 30 of the 5,000 pornographic images found on his computer was unfairly prejudicial; and (3) that he was entitled to front pay and retirement benefits.

The Court of Appeals agreed with Maestas that he was a prevailing party under the Whistleblower Protection Act, and therefore entitled to attorney’s fees and costs, despite recovering no compensatory damages.

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CA10: Supreme Court’s decision in Davis announced a new rule that applies retroactively to cases on collateral review

by Emil J. Kiehne Posted on November 5, 2019

Today the Tenth Circuit published its order in In re Mullins, granting the defendant’s motion to file a second or successive § 2255 motion to challenge his conviction for possession of a firearm during and in relation to a conspiracy to commit Hobbs Act robbery.

The Tenth Circuit concluded that the Supreme Court’s decision last term in United States v. Davis, which struck down the residual clause in 18 U.S.C. § 924(c), announced a new rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court, and that the rule was previously unavailable to Mullins.

Chief Judge Tymkovich, Judge Briscoe, and Judge Bacharach joined in the order.

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“New Mexico high court hears ‘warrior gene’ arguments”

by Emil J. Kiehne Posted on November 5, 2019

Robert Nott has this story in the Santa Fe New Mexican about yesterday’s oral argument in State v. Yepez, which involves the admissibility of evidence that the defendant’s genes predisposed him to act violently. While serving as a judge on the Court of Appeals, I wrote a concurring opinion in this case, expressing my view that it was unnecessary to reach the issue.

You can listen to the oral argument here.

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“NM Supreme Court takes up deadly pursuit cases”

by Emil J. Kiehne Posted on November 5, 2019

Katy Barnitz has this story in the Albuquerque Journal describing yesterday’s oral argument in State v. David Barber and State v. Elexus Groves, a case in which the New Mexico Supreme Court is being asked to decide whether aggravated fleeing from a law enforcement officer is a predicate for a felony murder charge.

You can listen to the oral argument here.

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