Center for America

State Tort Law Profile

State List

 

New Mexico

Last updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

  Economic Damages

Abolished in some cases

Joint liability has been abolished except in strict liability cases, cases involving intentional injury or damage, cases involving vicarious liability, or “situations not covered by any of the foregoing and having a sound basis in public policy.”  

N.M. Stat. Ann. § 41-3A-1.

 

Non-Economic Damages

Abolished in some cases

See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes

N.M. Stat. Ann. § 41-3A-1(B).

Market Share Liability

No

New Mexico courts have not considered market share liability.

Defenses

Comparative Negligence

Yes, pure comparative negligence

Otero v. Jordan Restaurant Enter., 922 P.2d 569 (N.M. 1996) (comparative fault principles apply unless such application would be inconsistent with public policy); see also Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981).

 

Assumption of Risk

No

Subsumed into comparative negligence.

Yount v. Johnson, 915 P.2d 341 (N.M. Ct. App. 1996) (citing Williamson v. Smith, 491 P.2d 1147, 1152 (N.M. 1971)).

 

Product Misuse

Yes

A manufacturer is not liable for injuries caused by a misuse of the product that was not reasonably foreseeable.

Van de Valde v. Volvo of Am. Corp., 744 P.2d 930 (N.M. Ct. App. 1987).

 

Compliance With Government Standards

No

Compliance with industry customs, standards, codes, or rules, or governmental rules, standards, or codes is evidence of the acceptability of the risk of harm in products liability cases and ordinary care in negligence cases, but it is not conclusive. 

Brooks v. Breech Aircraft Corp., 902 P.2d 54 (N.M. 1995).

 

Statute of Repose

None applicable to product liability cases

 

Government Contractor Defense

Undecided

 

McLawsuits Permitted? 

Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No restriction

Compensatory Damages

Is there a statutory limit on economic damages?

Yes, in medical malpractice cases only

In medical malpractice cases, total damages are limited to $600,000, excluding punitive damages and past and future medical care.  A health care provider's personal liability shall not exceed $200,000, including payments for future medical expenses.

N.M. Stat. Ann. §§ 41-5-6, 41-5-7.

 

Is there a statutory limit on non-economic damages?

Yes, in medical malpractice cases only

See above.

Is recovery for medical monitoring permitted without physical injury?

Uncertain

Punitive Damages 

Is there a statutory limit?

No

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No

 

Does the state receive a portion of the punitive damage award?

No

 

What standard is used?

Preponderance of the evidence

 

Procedures

Venue

 

 

Conducive to Abuse - 
Does the statute permit forum shopping?

Not reported

"Transitory actions" must be brought in the county:  (1) where either the plaintiff or defendant, or any one of them in case there is more than one of either, resides; (2) in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred; or (3) in any county in which the defendant or either of them may be found in the judicial district where the defendant resides.

N.M. Stat. Ann. § 38-3-1(A).

Irrespective of the above, suits may be brought against transient persons or non-residents in any county of the state, except that suits against foreign corporations admitted to do business and which designate and maintain a statutory agent in this state upon whom service of process may only be brought in the county where the plaintiff, or any one of them in case there is more than one, resides or in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred or in the county where the statutory agent designated by  the foreign corporation resides. 

N.M. Stat. Ann. § 38-3-1(F).

 

Class Actions

 

 

Is there a right to an immediate appeal of class certification?

Yes

An appellate court has allowed interlocutory appeal of an order granting class certification.

Ridley v. First Nat’l Bank, 531 P.2d 607, 608 (N.M. App. 1974), cert. denied, 531 P.2d 602 (N.M. 1975).

 

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

Yes

The required appeal bond is double the amount of the judgment. 

N.M. Stat. Ann. § 39-3-22.

In any civil action involving a signatory or successor or affiliate of a signatory to the tobacco Master Settlement Agreement, the bond required shall not exceed $100 million.

 

N.M. Stat. Ann. § 39-3-22 (as amended by S.B. 335, Reg. Sess. (N.M. 2007)).

 

Evidence 

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes

New Mexico adopted Daubert in State v. Alberico, 861 P.2d 192, 203 (N.M. 1993).  

In determining whether scientific evidence is reliable, New Mexico examines the evidence in light of the four Daubert factors and adds one other factor: “whether the scientific technique is based upon well-recognized scientific principle and whether it is capable of supporting opinions based upon reasonable probability rather than conjecture.”  The admission of expert testimony or other scientific evidence is within the sound discretion of the trial court and will not be reversed absent a showing of abuse of discretion.  The New Mexico Supreme Court has determined that the Daubert standard is not limited to scientific knowledge that is novel. 

State v. Torres, 976 P.2d 20 (N.M. 1999).

 

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Reliance is not required; causation is required.

A showing of detrimental reliance is not required, and a plaintiff need only show that the defendant's conduct "tends to deceive."

Smoot v. Physicians Life Ins. Co., 87 P.3d 545, 550 (N.M. Ct. App. 2003).

Plaintiff must present evidence that proves the alleged violation caused loss.

Richardson Ford Sales, Inc. v. Johnson, 676 P.2d 1344 (N.M. Ct. App. 1984); see also N.M. Stat. Ann. § 57-12-10.

 

What is the level of scienter (intent) required of a defendant?

Knowing misrepresentation, but an intent to deceive is not necessary

Stevenson v. Louis Dryfus Corp., 811 P.2d 1308 (N.M. 1991); N.M. Stat. Ann. § 57-12-10(A).

Are class actions permitted?

Yes

Only class representatives may obtain treble damages; all other class members may recover only actual damages.

N.M. Stat. Ann. § 57-12-10(E).

 

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

Yes

Plaintiff may recover greater of actual damages or $100. "Proof of monetary damage, loss of profits or intent to deceive or take unfair advantage of any person is not required" to obtain injunctive relief.

N.M. Stat. Ann. § 57-12-10.

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Greater of treble damages of $300 is available where there is a showing of willfulness.

N.M. Stat. Ann. § 57-12-10(B).

Does every prevailing plaintiff receive attorneys' fees and costs?

Yes

N.M. Stat. Ann. § 57-12-10(C).

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

“Nothing in the Unfair Practices Act shall apply to actions or transactions expressly permitted under laws administered by a regulatory body of New Mexico or the United States, but all actions or transactions forbidden by the regulatory body, and about which the regulatory body remains silent, are subject to the Unfair Practices Act.”

N.M. Stat. Ann. § 57-12-7.

New Mexico law also provides:

“It is the intent of the legislature that in construing [this Act]  the courts to the extent possible will be guided by the interpretations given by the federal trade commission and the federal courts.”

N.M. Stat. Ann. § 57-12-4.

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

Are the grounds for obtaining an excuse from service closely defined?

Yes

 "Undue or extreme physical or financial hardship" is defined as circumstances in which a person would: "(a) be required to abandon another person under the person's care or supervision due to the extreme difficulty of obtaining an appropriate substitute caregiver during the period of jury service; (b) incur costs that would have a substantial adverse impact on the payment of necessary daily living expenses of the person or the person's dependent; or (c) suffer physical hardship that would result in illness or disease; and (2) does not exist solely because a prospective juror will be absent from employment."

N.M. Stat. Ann. § 38-5-2(F).

 

May jurors automatically postpone and reschedule service?

Yes

Jurors have the right to one automatic postponement with a simple and convenient method of rescheduling jury service to a more convenient time within 6 months.

N.M. Stat. Ann. § 38-5-10.1.

Persons age 75 or older who file an affidavit requesting exemption from jury service shall be permanently exempt.

N.M. Stat. Ann. § 38-5-2(B) (as amended by S.B. 112 (N.M. 2009)).

 

Is a juror's employment and leave time adequately protected during service?

Yes

Employers may not deprive an employee of employment, or threaten or otherwise coerce an employee because of his or her participation in jury service.  An employer may not require an employee to use annual, vacation, or sick leave time for the period in which he or she serves.

N.M. Stat. Ann. § 38-5-18. 

 

Is there a limit on the frequency of jury service?

Yes

Any person who has served on a federal or state jury within the preceding 3 years is exempt from jury service.

N.M. Stat. Ann. § 38-5-2(A).

 

Is the length of service limited to no more than one day or one trial?

No

New Mexico law does not set a uniform term of court.

N.M. Stat. Ann. § 38-5-12.

Juror per diem

Minimum wage

Jurors receive the highest prevailing state minimum wage for each hour of attendance in jury service, plus mileage from their residence to the courthouse, from the state.

N.M. Stat. Ann. § 38-5-15.

 

Is additional compensation available on lengthy trials?

No

Is the potential penalty for nonappearance sufficient to encourage participation?

No

Willful failure to appear is a criminal offense.

N.M. Stat. Ann. § 38-5-10.

Problem Jurisdictions

New Mexico’s Appellate Courts

 

Named on the "watch list" in the American Tort Reform Association's Judicial Hellholes report.

 

 

 

This Analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com Original material © 2009 Center for America.