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).

The post NMSC: Independent medical examination may be ordered in workers’ compensation death benefits cases first appeared on New Mexico & CA10 Appellate Blog.

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 As originally enacted in 1967, the Act prohibited “unfair methods of competition,” but the Legislature removed that language in 1971.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.

The post NMSC: Unfair Practices Act protects consumers, not competitors first appeared on New Mexico & CA10 Appellate Blog.

You can listen to the oral argument here.

The post “Medical damages debate hits NM Supreme Court” first appeared on New Mexico & CA10 Appellate Blog.

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.”

The post CA10: Defect in notice to appear for removal hearing was not jurisdictional first appeared on New Mexico & CA10 Appellate Blog.

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.

The post 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 first appeared on New Mexico & CA10 Appellate Blog.

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

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

The post CA10: Destruction of innocent homeowner’s property by police was not a taking first appeared on New Mexico & CA10 Appellate Blog.

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.

The post NMCA: Whistleblower who recovered no damages still entitled to attorney’s fees and costs first appeared on New Mexico & CA10 Appellate Blog.

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.

The post CA10: Supreme Court’s decision in Davis announced a new rule that applies retroactively to cases on collateral review first appeared on New Mexico & CA10 Appellate Blog.

You can listen to the oral argument here.

The post “New Mexico high court hears ‘warrior gene’ arguments” first appeared on New Mexico & CA10 Appellate Blog.

You can listen to the oral argument here.

The post “NM Supreme Court takes up deadly pursuit cases” first appeared on New Mexico & CA10 Appellate Blog.