NEWS

DP&S is proud to have assisted trial counsel Jack Walker and Reid Martin of Martin Walker PC in a defective product case with national and international ramifications. 

This tragic case involved the death of a two-year-old child who died from choking on a Calico Critters Yellow Labrador Twins toy.  Initially filed in 2018, the case was heavily litigated for more than three years. In 2021, Plaintiffs successfully defeated partial summary judgment filed by Defendant Epoch Everlasting Play, LLC; although the Defendant argued that it could not be held liable as a matter of law under a negligence per se theory, Plaintiffs convinced the Court of the opposite: that Epoch was negligent per se because the toy violated Consumer Product Safety Commission Regulations, and thus the toy was a “banned hazardous substance.”  The Court agreed with the position advanced by Plaintiffs, finding that Epoch was negligent per se because its toy has small parts that presented a choking hazard and, as a “flocked” toy, was intended for children under three years of age.  You can read the Court’s opinion here. Shortly after the Court’s favorable ruling, the case was resolved for a confidential sum. 

But honoring their clients’ wishes, Martin Walker and DP&S continued to fight to convince regulators that these toys should be removed from the market entirely.  Initially, the Court’s decision was cited by CPSC acting commissioner Peter Feldman, who urged the federal agency to expedite enforcement of CPSC regulations against flocked toys to protect the health and safety of children across the country. You can read Commissioner Feldman’s press release here. 

After continued lobbying efforts, on March 9, 2023, the CPSC announced a voluntary recall of all Calico Critters animal figure and sets sold with small parts accessories. Commissioner Feldman sent a strong message about the recall and called for the recall as a “first step” urging the CPSC to review similar toys and accessories to ensure safety.  You can read Commissioner Feldman’s statement here.

Congratulations to Santa Fe partners, Caren Friedman, Justin Kaufman, and Rosalind Bienvenu, who successfully convinced the New Mexico Court of Appeals to affirm a judgment rejecting contract and fraud claims against state licensed medical cannabis growers, Ken and Irene Livingston, the founders of Healthy Education Society.  The Livingstons prevailed at trial, and on appeal, the judgment was affirmed in its entirety based on the failure to prove damages.  You can read the memorandum opinion in Livingston Land, LLC v. Brooker, A-1-CA-38948 (N.M. App. Feb. 15, 2023), here.

Congratulations to Santa Fe partner, Caren Friedman, who presented argument on behalf of the Plaintiff in the New Mexico Court of Appeals on January 12, 2023.  Plaintiff was catastrophically injured when the grossly overloaded and untethered scaffold on which he was working collapsed.  In New Mexico, a negligence claim against an employer is barred by the exclusivity provision of the Workers Compensation Act.  Caren argued that the employer’s intentional acts and omissions and utter disregard for the consequences allow Plaintiff’s claim to proceed.  The Court will determine whether the district court erred in granting summary judgment in favor of the employer.  You can listen to Caren’s argument in Camarena v. Superior Contracting Corp. d/b/a American Nat’l Insulation and Sealants, N.M. App., A-1-CA-39598; A-1-CA-39269 here.

Congratulations to Santa Fe partners Caren Friedman, Rosalind Bienvenu, and Justin Kaufman, who successfully convinced the New Mexico Court of Appeals to affirm the judgment in a complex water law appeal.  DP&S, along with Paul Hultin and the New Mexico Environmental Law Center, represented a consortium of individuals and entities (“Protestants”) who opposed Aquifer Science’s water application, which sought to appropriate groundwater for a speculative, luxury, resort-style development with two golf courses in the East Mountains near Albuquerque.  In a formal published opinion, the Court of Appeals agreed that the New Mexico State Engineer’s denial of Aquifer Science’s application was proper because granting the application would result in the impairment of existing wells and would be contrary to the conservation of water.  On the conservation prong of the governing statute, Protestants argued that the State Engineer should take into consideration climate change when addressing water applications, prompting the Court of Appeals to call on the State Engineer and the New Mexico Legislature to “provide guidance regarding climate change and conservation before it is judicially imposed.”  Finally, the Court of Appeals affirmed a cost award of nearly $400,000 to Protestants as the prevailing parties, and, as a matter of first impression, held that Protestants are entitled to post-judgment interest on that award.  You can read the opinion in Aquifer Science, LLC v. Verhines, et al. here.

Congratulations to Kirk Pittard who was featured in the Summer 2022 edition of Baylor Law School’s Docket Call. You can read the article here.

Congratulations to DP&S attorney, Shelby White, who won another qualified immunity appeal to the Fifth Circuit. The appeal was by two police officers who used excessive force to remove and arrest a student at a high school basketball game. The trial court denied the officers’ claim of qualified immunity because of material fact disputes between the officers’ and student’s version of events. On appeal, the Fifth Circuit affirmed the trial court’s ruling, finding that video of the incident did not conclusively establish that the officers’ use of force was reasonable, and that the law clearly prohibited use of the level of force against a teenager who was “not committing a crime, not a threat to others, and not resisting or attempting to flee the police.” You can read the opinion here.

Congratulations to Santa Fe partner and Chair of the New Mexico State Bar Appellate Practice Section, Rosalind Bienvenu, who moderated the Appellate Judges Candidate Forum on October 18. 

The Forum featured nine candidates for seats on the New Mexico Supreme Court and the New Mexico Court of Appeals, including Justice Julie J. Vargas, Justice Briana H. Zamora, Judge Katherine A. Wray, and Judge Gerald E. Baca.  The Forum, which was open to the public, provided an opportunity for the judicial candidates to answer questions designed to familiarize voters with their backgrounds and philosophies. The Forum can be viewed on the New Mexico State Bar’s YouTube page.

Congratulations to DP&S attorney, Shelby White, who–along with Thad Spalding, and trial attorney, Daryl Washington–successfully reversed a summary judgment order granting qualified immunity to a police officer. The case involved the fatal shooting of Tavis Crane by Arlington police officer Craig Roper after Crane was stopped when his toddler threw a candy wrapper out of the car window. The trial court granted summary judgment to Officer Roper on the basis of qualified immunity, finding that case law precedent built qualified immunity “into a nearly insurmountable obstacle.” On appeal, the Fifth Circuit found that there were fact issues that needed to be decided by a jury as to whether Roper acted used reasonable force, considering–among many other facts–the speed that Roper resorted to using deadly force. As such, the Court reversed summary judgment and remanded the claims against Officer Roper and the City of Arlington to the district court for trial. You can read the opinion here, and a Dallas Morning News article about the case here.