Caren I. Friedman, Partner

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Publications & Presentations

Just the Facts: Ethical and Jurisprudential Considerations

Appellate Practice Institute, Albuquerque, 2020

Unmoored: A New Harmless Error Era

NEW MEXICO LAWYER, May 2014, Vol. 9, No. 2

Taking the Rights Steps – and Avoiding Missteps – Before and After You File a Notice of Appeal

New Mexico State Bar Annual Meeting, Santa Fe, June 2013

Give Me Your Tired: Why an Appellate Specialist Should Be on Your Trial Team

New Mexico Trial Lawyers Association Federal Practice and Procedure, Albuquerque, February 2010

Calling Daniel Webster: A Message from the Chair

APPELLATE NEWS (Appellate Practice Section of the State Bar of New Mexico), Aug. 2007

Perseverance: Rehearing & Certiorari

Appellate Practice Institute, Albuquerque, August 2006

The Basics of an Appeal: What Every Lawyer Needs to Know

New Mexico State Bar Annual Meeting, Ruidoso, September 2005

Citing “Unpublished” Opinions: An Overview of the National Debate

APPELLATE NEWS (Appellate Practice Section of the State Bar of New Mexico), Oct. 2004

The Methodology of Oral Argument

Appellate Practice Institute, Albuquerque, August 2004

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Significant Cases

Le v. United States of America, No. 4:22-cv-00147-O, 2023 WL 4708003 (N.D. Tex. Dec. 15, 2023)

Successfully rebuffed the Government’s motion for a new trial, brought under the Maximum Recovery Rule, seeking to reduce over $26 million in damages, including over $18 million in noneconomic damages, in a catastrophic injury case brought under the Federal Tort Claims Act.  The Court denied the Government’s motion in its entirety and upheld the judgment in full.

Livingston Land, LLC v. Brooker, No. A-1-CA-38948, 2023 WL 2017517 (N.M. App. Feb. 15, 2023)

Successfully convinced New Mexico Court of Appeals to affirm judgment rejecting contract and fraud claims against state licensed medical cannabis growers for failure to prove damages.

Walker v. Carlsbad Med. Ctr., LLC, No. A-1-CA-40662, 2023 WL 209184 (N.M. Ct. App. Jan. 17, 2023)

Successfully convinced the New Mexico Court of Appeals to reverse summary judgment in a medical malpractice case in which the defendant hospital administered incorrect blood pressure medications to the wrong patient, causing a life-threatening drop in blood pressure. The Court of Appeals found that the grant of summary judgment was error because plaintiff’s medical expert’s testimony permitted a reasonable inference of causation.

Aquifer Science v. Verhines, et al., 2023-NMCA-020, 527 P.3d 667 (2022)

Successfully defended decision to deny developer’s water application that would have impaired existing wells and would have been contrary to conservation of water in New Mexico, along with cost award, including post-judgment interest, to prevailing public interest group that opposed water application.

Collado v. Fiesta Park Healthcare, LLC, 525 P.3d 378 (N.M. Ct. App. 022)

Assisted with briefing and strategy in defeating nursing home’s effort to overturn $11M verdict and, on cross-appeal, reinstating a jury finding that the various defendant-entities operated as a joint venture, making them all responsible for the nursing home’s conduct.

Rawlings v. Rawlings, 505 P.3d 875 (N.M. App. 2021)

Successfully convinced New Mexico Court of Appeals to reverse the final decree in a domestic relations case where district court violated the Rules of Civil Procedure by failing to conduct a hearing on mother’s objections to a domestic relations hearing officer’s recommendations regarding child custody.

Moreschini v. Grover, No. A-1-CA-38403, 2021 WL 398720 (N.M. Ct. App. Feb. 4, 2021)

In a domestic relations appeal arising under the Uniform Child Custody Jurisdiction and Enforcement Act, the New Mexico Court of Appeals unanimously affirmed the judgment, including an attorney fee award.

Forsythe v. Ford Motor Co., S-1-SC-37761 & -37762, 2020 WL 6611059 (N.M. Nov. 12, 2020)

Successfully convinced the New Mexico Supreme Court to reinstate Plaintiffs’ appeal that was wrongly dismissed as untimely by the New Mexico Court of Appeals.  The Supreme Court held that the Court of Appeals improperly gave “greater weight to procedural formalities than to basic rights of appeal” and should have deferred to the district court’s decision to grant an extension of the Plaintiffs’ notice of appeal deadline based on excusable neglect.

Vigil v. Ludwig-Vigil, No. A-1-CA-37912, 2020 WL 6155390 (N.M. App. Oct. 20, 2020)

In this domestic relations appeal, the Court of Appeals unanimously affirmed the district court’s method of calculating the community’s interest in Husband’s retirement benefits and valuing Wife’s share.  The Court of Appeals also affirmed the district court’s refusal to allow Wife’s late-disclosed expert to testify, where Wife offered her expert report months after the evidentiary hearing.

Aquifer Science, LLC v. Verhines, et al., D-202-cv-2014-07209 (N.M. Dist. Ct. Jan. 27, 2020)

Working with trial counsel Paul Hultin and the New Mexico Environmental Law Center, who had previously secured an important ground water victory after a 2-week bench trial on behalf of the San Pedro Creek Homeowners’’ Association and other homeowners, DP&S prevailed on a bill of costs in the amount of $379,854.05, plus post-judgment interest.  The cost bill was opposed by Aquifer Science and the Office of State Engineer (“OSE”), and the Court rejected arguments made by both parties in favor of DP&S’ clients.  The Court further denied motions to reconsider filed by both Aquifer Science and the OSE following the ruling.  DP&S continues to serve as lead appellate counsel in this case pending in the New Mexico Court of Appeals.

VanderLugt v. VanderLugt, 429 P.3d 1269 (N.M. Ct. App. 2018)

As a matter of first impression, holding that wife had no community lien interest in asset of irrevocable trust – a life insurance policy with a net death benefit over $5 million – where husband created and funded the trust prior to marriage.

Tran v. Bennett, 411 P.3d 345 (N.M. 2018)

Reversing parental rights conferred on former husband of biological mother where child already had two legal parents, biological mother and biological father; reversing sanctions imposed on biological parents for taking their child on a family vacation that allegedly interfered with former husband’s scheduled visitation.

Tomlinson v. Weatherford, 399 P.3d 961 (N.M. Ct. App. 2017)

In complex multi-jurisdictional same-sex custody battle, reversing district court’s finding that petition should be heard in Oklahoma and remanding for adjudication of parentage of biological mother’s former domestic partner.

Hancock v. Nicoley, 392 P.3d 175 (N.M. Ct. App. 2016)

Reversing error of district court in awarding windfall of parcel of land in boundary dispute between neighboring ranchers.

Williams v. BNSF Railway Co., 359 P.3d 158 (N.M. Ct. App. 2015)

Upholding judgment on jury verdict in favor of employee injured by railroad, rejecting railroad’s challenge to admission of evidence of subsequent remedial measures and of injuries to other railroad employees.

State v. Flores, 355 P.3d 81 (N.M. Ct. App. 2015)

Reversing reckless child abuse conviction and 18-year term of imprisonment of father whose baby died while in his care.

Atherton v. Gopin, 340 P.3d 630 (N.M. Ct. App. 2014), cert. granted 344 P.3d 988 (N.M. 2014)

Reversing “draconian” use of summary judgment procedure as antithetical to New Mexico’s approach.

Griego v. Oliver, 316 P.3d 865 (N.M. 2013) (representing amicus curiae)

Holding that statutory scheme that denied same-sex couples the right to marry violates the Equal Protection Clause of the New Mexico Constitution.

Chatterjee v. King, 280 P.3d 283 (N.M. 2012)

As a matter of first impression, holding that Uniform Parentage Act’s statutory presumption conferring status of father on a man applies equally to same-sex partner of child’s adoptive mother, noting that classifications based on gender are presumptively unconstitutional and that denying partner opportunity to establish parentage would harm both the child and the State.

Sherouse v. Ratchner, 573 F.3d 1055 (10th Cir. 2009)

In suit against police officers challenging arrest under 42 U.S.C. § 1983, reversing in part judgment on jury verdict for defendants, holding that probable cause to support arrest was lacking where officer observed inherently innocuous behavior with a plausible innocent explanation.

State ex rel. CYFD v. John R., 203 P.3d 167 (N.M. Ct. App. 2009)

Reversing termination of father’s parental rights where district court erred in failing to appoint counsel for child who was over the age of 14, even where child had a disability and was not functioning at the mental age of 14; holding that father had standing to raise the right-to-counsel issue on behalf of his child.

Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) (en banc)

In action brought under 42 U.S.C. § 1983 for unlawful arrest and unreasonable search and seizure, on review of partial summary judgment on qualified immunity grounds, holding that officers were on reasonable notice that their warrantless arrest violated the Fourth Amendment and was not justified by exigent circumstances.

Padilla v. Wall Colmonoy Corp., 145 P.3d 110 (N.M. Ct. App. 2006)

On interlocutory appeal, affirming denial of employer’s motion to dismiss wrongful death case arising from workplace injury; retroactively applying Supreme Court precedent stating that exclusivity provision of Workers’ Compensation Act does not protect employer from tort suit where employer willfully or intentionally injures worker.

State v. Romero, 142 P.3d 887 (N.M. 2006) (representing amicus curiae)

Holding that State does not have jurisdiction to prosecute enrolled tribal members for alleged crimes occurring within the exterior boundaries of an Indian Pueblo.

Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006)

Holding that Indian Pueblo did not waive its sovereign immunity on breach of lease claim, and tribal officials were not liable under 42 U.S.C. § 1983 for actions taken under color of tribal law.

Coleman v. City of Las Cruces, 137 P.3d 670 (N.M. Ct. App. 2006)

Affirming jury verdict for injured pedestrian, holding that a plaintiff is not required to name an individual public employee as a defendant to recover damages under the Tort Claims Act; naming only a governmental entity is sufficient.

Williams v. Stewart, 112 P.3d 281 (N.M. Ct. App. 2005)

In class action brought by family members of decedents whose body parts were taken surreptitiously and used in experiments at Los Alamos National Laboratory to test plutonium levels, reversing summary judgment on statute of limitation grounds granted in favor of physician who performed autopsies in aid of experiments.

Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707 (8th Cir. 2003)

Reversing summary judgment for employer in suit brought by employee under the Americans with Disabilities Act.

Ebbert v. DaimlerChrysler Corp., 319 F.3d 103 (3d Cir. 2003)

Reversing summary judgment for employer in suit brought by employee under the Americans with Disabilities Act.

EEOC v. Roadway Express, Inc., 261 F.3d 634 (6th Cir. 2001)

Affirming order to show cause to compel compliance with subpoena due to company’s failure to turn over documents relevant to Commission’s charge of race and sex discrimination.

Pollard v. E.I. DuPont de Nemours & Co., 532 U.S. 843 (2001) (representing EEOC as co-counsel with Solicitor General on behalf of United States as amicus curiae)

In Title VII hostile work environment claim, holding that front pay is not an element of compensatory damages subject to the statutory cap in the Civil Rights Act of 1991.

EEOC v. J.H. Routh Packing Co., 246 F.3d 850 (6th Cir. 2001)

Reversing judgment on the pleadings entered in favor of company charged with discrimination under the Americans with Disabilities Act.

EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000)

Reversing summary judgment for employer in suit brought under the Americans with Disabilities Act; in spite of plaintiff’s statement in Social Security Disability Insurance application about her inability to work, the Commission was not estopped from asserting that plaintiff was a qualified individual with a disability, i.e. that she could perform the job’s essential functions with or without a reasonable accommodation.

EEOC v. W & O, Inc., 213 F.3d 600 (11th Cir. 2000)

Affirming awards of punitive damages to class of women under the Pregnancy Discrimination Act against employer who had a written policy barring pregnant waitresses from waiting tables past their fifth month of pregnancy; concluding that there was sufficient evidence for jury to find that employer acted with reckless indifference to the civil rights of its pregnant employees; as a matter of first impression, holding that each aggrieved employee may receive up to the full amount permitted by the applicable statutory cap on damages.

Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000) (representing amicus curiae)

In Title VII case, holding that district court applied wrong standards in determining that employee failed to establish a prima facie case of retaliation and quid pro quo sexual harassment; reversing in part summary judgment for employer.

In the Matter of the Estate of Perry R. Trujillo, No. A-1-CA-39680, 2024 WL 1093779 (N.M. App. March 13, 2024)

DP&S successfully defended against the Estate’s appeal, which sought to redistribute valuable water rights and various family heirlooms. The New Mexico Court of Appeals agreed that the judgment should be affirmed, partially on the merits and partially for the Estate’s failure to preserve issues for appellate review.