Certiorari Granted, No. 31,750, July 30, 2009
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-078
Filing Date: May 29, 2009
Docket No. 27,470
DONALD E. KILGORE and
CAROLE A. KILGORE,
Plaintiffs-Appellants,
v.
FUJI HEAVY INDUSTRIES LTD.,
TAKATA CORPORATION, and
TAKATA SEAT BELTS INC.,
Defendants-Appellees,
and
SUBARU OF AMERICA, INC.,
Defendant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Stephen D. Pfeffer, District Judge
Peters & Lister, P.C.
Darrel Peters
Dearborn, MI
Comeau, Maldegen, Templeman & Indall, LLP
Grey Handy
Sharon W. Horndeski
Santa Fe, NM
for Appellants
Bowman and Brooke LLP
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Thomas M. Klein
Phoenix, AZ
Rodey Dickason Sloan Akin & Robb, PA
Patrick M. Shay
Jeffrey M. Croasdell
Albuquerque, NM
for Appellees Fuji Heavy Industries Ltd.
and Takata Corporation
Bowman and Brooke LLP
David R. Kelly
Minneapolis, MN
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Martha G. Brown
Albuquerque, NM
for Appellee Takata Seat Belts Inc.
OPINION
SUTIN, Judge.
{1} This case centers on a defective seatbelt buckle claim in a vehicle rollover accident.
Plaintiff Carole Kilgore was seriously injured. Plaintiff Donald Kilgore, her husband, was
driving. The trial resulted in a defense verdict. Plaintiffs tried this case on the theory that
the buckle design created a risk of accidental or inadvertent release, recognizing that the
precise identification of what depressed the seatbelt buckle release button could never be
known with certainty.
{2} More specifically, Plaintiffs sought to prove that the release button “was needlessly
and dangerously exposed and demonstrably susceptible to unintended contact, opening the
buckle and releasing the [seatbelt].” Their approach was to show that “such inadvertent
contact could come from a hand, an elbow, or a variety of other objects loose in the
passenger compartment of the car, which could have accidentally contacted and depressed
the exposed button during a rollover collision.” Plaintiffs’ theories of recovery presented
to the jury were negligence and product liability.
{3} Plaintiffs moved for a new trial. The district court denied the motion without a
hearing. Plaintiffs assert reversible error in denying their motion for a new trial based on
claims of juror misconduct, improper comments in Defendants’ opening statement, and two
erroneous evidentiary rulings. We hold these claims do not require a new trial. On juror
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misconduct, we hold Plaintiffs failed to meet the preliminary requirement that they show
there was a reasonable likelihood that extraneous information a juror received would have
an effect on the verdict or on a typical juror and thus that there was a reasonable possibility
that the information prejudiced Plaintiffs. We further hold that defense counsel’s opening
statement comments do not warrant a new trial. We also hold that the district court did not
abuse its discretion in excluding evidence of other incidents or in allowing a defense expert’s
deposition testimony that the buckle in question could arguably meet certain test
requirements. We therefore affirm the defense verdict.
{4} The record proper in this case consists of thirty-two volumes consuming 5366 pages.
There are thirty-two separate transcripts of various proceedings. Experts and other witnesses
testified on the issues of negligence, product defect, and when, during the rollover, Mrs.
Kilgore may have suffered the permanent spinal cord injury for which she seeks damages.
Trial before a panel of twelve jurors took about three weeks. The jury’s verdict was
unanimous. Nothing presented to us in the briefs indicates that this was not a fully and
professionally tried case.
BACKGROUND
{5} Mr. Kilgore was driving a 1998 Subaru Legacy Outback wagon at the time of the
accident. Mrs. Kilgore was in the back seat behind Mr. Kilgore, and their seven-year-old
granddaughter was in the front passenger seat. All were wearing their seatbelts. The car
went out of control, rolled over, and landed upside down at the bottom of an embankment.
Mr. Kilgore and his granddaughter remained belted and were hanging upside down,
suspended in their seatbelts. They did not suffer serious injuries. Mrs. Kilgore was found
lying on the roof, facing up toward the sky, and was not suspended by her seatbelt. No direct
evidence was presented as to how Mrs. Kilgore came to be unbelted.
{6} Plaintiffs sued Fuji Heavy Industries Ltd. (Fuji), which designed the car; and Takata
Corporation (Takata) and Takata Seatbelts, Inc. (Takata Seatbelts), which designed and
manufactured, respectively, the car’s seatbelt system. Plaintiffs contended that the Takata
AB buckle in the Subaru’s seatbelt system was negligently designed, tested, and selected and
was defective because it accidentally or inadvertently unlatched during the rollover, resulting
in a permanent spinal cord injury that left Mrs. Kilgore a ventilator-dependent quadriplegic.
Obvious questions for the jury were at what point did the buckle release and what likely
caused it to release. We refer to Fuji, Takata, and Takata Seatbelts, together, as Defendants.
{7} The jury was instructed that to establish negligence on the part of Defendants,
Plaintiffs had the burden of proving that Fuji failed to exercise ordinary care in designing,
testing, or selecting the seatbelt system and that Takata failed to exercise ordinary care in
designing and testing the seatbelt system. The jury was also instructed that, to establish a
claim of defective product on the part of Defendants, Plaintiffs had the burden of proving
that the seatbelt system created an unreasonable risk of injury to Mrs. Kilgore and that the
seatbelt system was defective when it reached the user or consumer.
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{8} The jury rendered a special verdict in favor of Defendants. The jury specifically
found that Fuji was not negligent in designing, testing, or selecting the seatbelt system and
that Takata was not negligent in designing or testing the seatbelt system. The jury also
specifically found that no negligence of Fuji or Takata was a cause of Mrs. Kilgore’s spinal
cord injury and related damages. In addition, the jury specifically found that the seatbelt
system in Plaintiffs’ car that was supplied by Defendants was not defective. The verdict was
rendered on September 29, 2006, and the court entered a final judgment on the verdict and
in Defendants’ favor on December 11, 2006.
{9} A legal assistant for Plaintiffs’ counsel conducted an investigation into the jury’s
verdict from October through December 2006 that discovered a juror had received
extraneous information. Based on this discovery and also on alleged prejudicial error in
evidentiary rulings, Plaintiffs filed a motion for a new trial on December 22, 2006.
Accompanying the motion was Plaintiffs’ thirty-six page memorandum containing twenty-
six exhibits. Plaintiffs appeal the court’s denial of that motion.
DISCUSSION
Juror Misconduct
{10} Through the post-verdict investigation, Plaintiffs learned that one juror, likely early
in the trial, spoke to the owner of a Subaru-specific repair shop, Michael Griego (the owner),
where the juror’s brother worked as a mechanic. Plaintiffs then presented to the court an
affidavit of the owner dated December 12, 2006. In its entirety, the affidavit states:
The affiant, Michael Griego[,] first being duly sworn deposes and
says as follows:
1. My name is Michael Griego. I am an adult and I am competent to
make this affidavit. The facts stated in this affidavit are true and are
based upon my own personal knowledge.
2. I read an article in the newspaper about the trial in Santa Fe in which
a woman was suing Subaru because she was paralyzed in a rollover
accident because her [seatbelt] came off. I believe the article was in
September of [2006].
3. I am the owner of Mike’s Garage at 1501 5[th] St., Santa Fe, New
Mexico. My shop only works on Subaru vehicles. Michael Lucero
is an employee of my business.
4. Marie Millie Valdivia is Michael Lucero’s sister.
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5. Prior to my seeing the newspaper article about the Subaru trial, Ms.
Valdivia and I had a conversation. She told me that she was a juror
on the Subaru trial. I told her I had never heard of any incident where
a Subaru [seatbelt] buckle had come open accidentally. I told her that
I had never heard of that happening.
6. During the conversation, she said to me, at least twice, that she was
not supposed to be talking to me about the case.
Plaintiffs’ motion for a new trial was in part based on their view that the juror engaged in
misconduct as shown by the conversation described in the owner’s affidavit.
Standard of Review
{11} “The essence of cases involving juror . . . misconduct . . . is whether the
circumstance[s] unfairly affected the jury’s deliberative process and resulted in an unfair
jury.” State v. Mann, 2002-NMSC-001, ¶ 20, 131 N.M. 459, 39 P.3d 124. We will not
overturn a district court’s denial of a motion for a new trial based on juror misconduct unless
the court abused its discretion. Id. ¶ 17. An abuse of discretion in this context occurs if the
court’s ruling is arbitrary, capricious, or beyond reason. Id. The district court is in the best
position to decide whether to grant a new trial. Id.
The Affidavit’s Shortcomings
{12} The owner’s affidavit constitutes the sole evidence Plaintiffs presented to the court
as evidence of the juror’s conduct relating to the receipt of extraneous information. The
circumstances set out in the owner’s affidavit are not, in our view, to be characterized as
“jury tampering,” as occurs when a person purposefully initiates contact with a juror and
then says something to influence the juror. See id. ¶¶ 20-21 (discussing cases involving jury
tampering). Nor does this case involve “juror bias.” See id. ¶¶ 20-21, 25-26. Further, the
contact here was not equal to unauthorized social visits with court personnel or lawyers
involved in the case. Compare Gonzales v. Surgidev Corp., 120 N.M. 133, 148, 899 P.2d
576, 591 (1995) (deciding not to reach whether a bailiff’s lunch with the plaintiff fell within
the category of extraneous prejudicial information because it was shown that no prejudice
resulted), with State v. Pettigrew, 116 N.M. 135, 140, 860 P.2d 777, 782 (Ct. App. 1993)
(determining that the court did not commit reversible error in excusing a seated juror for the
appearance of impropriety when the juror was seen leaving in his vehicle with an intern from
the public defender’s office during a recess in the trial). The owner’s affidavit is unclear as
to whom initiated a discussion in regard to seatbelt buckles. Were it shown that the juror
asked the owner about seatbelt buckles unlatching, this case would appear to fall more in line
with what our Supreme Court in Mann characterized as misconduct, which involved the
initiation of a conversation by a juror with another person in an attempt to obtain information
relevant to the case contrary to the instructions of the court. See 2002-NMSC-001, ¶¶ 22,
5
24 (discussing juror misconduct and distinguishing between knowledge of extraneous facts
that are and that are not directly related to the specific case).
{13} The affidavit shows only that a conversation occurred in which the juror told the
owner that she was a juror in “the Subaru trial,” that the owner said he had never heard of
an incident of a buckle opening accidentally, and that the juror indicated that she was not
supposed to be talking to the owner about the case. The affidavit does not specifically state
the sequence of the statements in the conversation and it gives no clue as to what caused the
owner to say what he did or what motivated the juror to say what she did. The affidavit does
not expressly state that the juror initiated the conversation. If we assume she did, all we
would know is that she said that she was a juror in the Subaru trial. Without more, we will
not conclude that the juror disobeyed an instruction of the court not to discuss case-related
issues or facts with others. Nevertheless, the juror did receive extraneous information
relating to an issue in the case.
Presumption of Prejudice and Preliminary-Showing Requirement
{14} In determining whether a new trial is required based on the juror’s receipt of
extraneous information, we look at whether the information that was imparted to the single
juror gave rise to a presumption of prejudice requiring Defendants to rebut the presumption
or at least requiring the district court to hold an evidentiary hearing and to question one or
more jurors. Early in New Mexico criminal law, our Supreme Court established a
presumption of prejudicial error in relation to a court’s communication with the jury. See
State v. Beal, 48 N.M. 84, 89-94, 146 P.2d 175, 178-82 (1944) (holding that reversible error
occurred upon a showing that the court improperly communicated with the jury regarding
the case after the matter had been submitted to the jury, and the communication was not in
the presence of the parties in open court). The Court in Beal emphasized that once the
improper communication was shown, the burden was not on the appellant who was claiming
prejudice to show prejudice, but instead was on the appellee who was claiming that there
was no prejudice to overcome the presumption of prejudicial error by showing a lack of
prejudice. Id. at 91-92, 94, 146 P.2d at 180, 181-82.
{15} Ten years after Beal, in Remmer v. United States, the United States Supreme Court
broadly stated that “[i]n a criminal case, any private communication, contact, or tampering
directly or indirectly, with a juror during a trial about the matter pending before the jury is,
for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known
rules of the court and the instructions and directions of the court made during the trial, with
full knowledge of the parties.” 347 U.S. 227, 229 (1954). In Remmer, the impropriety
involved jury tampering, in that a person remarked to a juror that the juror could profit by
bringing in a verdict favorable to the defendant. Id. at 228.
{16} In State v. Doe, 101 N.M. 363, 365, 367, 683 P.2d 45, 47, 49 (Ct. App. 1983), this
Court discussed the Beal presumption in connection with a newspaper story regarding
witness intimidation that came to a juror’s attention during a recess. This Court did not
6
determine whether the communication constituted prejudicial extraneous information that
reached the jury; rather, the matter was remanded for a hearing for findings on “whether
extraneous information reached the jury” and “whether the extraneous information
prejudiced the jury.” Doe, 101 N.M. at 366, 683 P.2d at 48. In stating that the burden is on
the movant to obtain a new trial, this Court stated:
The party seeking a new trial on the basis that extraneous evidence
reached the jury must make a preliminary showing that movant has
competent evidence that material extraneous to the trial actually reached the
jury. If the party makes such a showing, and if there is a reasonable
possibility the material prejudiced the defendant, the trial court should grant
a new trial. The trial court has a duty to inquire into the possibility of
prejudice. In an appropriate case, the trial court should conduct an
evidentiary hearing.
Id. (citations omitted). Our Supreme Court confirmed this approach in Mann. See Mann,
2002-NMSC-001, ¶ 19.
{17} The presumption expressed in Beal and Doe has continued in New Mexico in both
criminal and civil cases in various contexts. Criminal cases: see, e.g., State v. Sanchez,
2000-NMSC-021, ¶¶ 23-24, 129 N.M. 284, 6 P.3d 486 (involving the post-submission
substitution of a juror); State v. Sena, 105 N.M. 686, 687-88, 736 P.2d 491, 492-93 (1987)
(involving a juror’s statement during deliberations about guilt of the defendant and that this
view was not based on anything the juror heard in the courtroom); State v. McCarter, 93
N.M. 708, 711, 604 P.2d 1242, 1245 (1980) (involving the court’s communication with the
jury in the absence of the defendant); State v. Melton, 102 N.M. 120, 123, 692 P.2d 45, 48
(Ct. App. 1984) (involving a jury’s consideration of dictionary definitions); State v.
Gutierrez, 78 N.M. 529, 530, 433 P.2d 508, 509 (Ct. App. 1967) (involving an unknown
person who brushed against a juror during a break and told the juror “to make a wise
decision,” which was presented to the court before jury deliberations). Civil cases: see, e.g.,
Goodloe v. Bookout, 1999-NMCA-061, ¶ 20, 127 N.M. 327, 980 P.2d 652 (involving jurors
discussing personal knowledge of facts among themselves during deliberations); Hurst v.
Citadel, Ltd., 111 N.M. 566, 570-71, 807 P.2d 750, 754-55 (Ct. App. 1991) (involving a
bailiff’s misstatement of law to the jury); Prudencio v. Gonzales, 104 N.M. 788, 789-90, 727
P.2d 553, 554-55 (Ct. App. 1986) (involving a bailiff’s direct and inappropriate contact with
jurors); Budagher v. Amrep Corp., 100 N.M. 167, 171, 667 P.2d 972, 976 (Ct. App. 1983)
(involving an improper set of instructions in the jury room and the court noting a number of
improper-communication-with-jury cases in New Mexico since Beal, applying the
presumption-of-prejudice test and determining that the error in the case at hand was
“serious” and that the presumption was supported by the record).
{18} We note that, in Mann, our Supreme Court specifically indicated that the United
States Supreme Court has distanced itself from Remmer’s presumption of prejudice. Mann,
2002-NMSC-001, ¶ 36; see also Goodloe, 1999-NMCA-061, ¶ 20 (noting United States v.
7
Sylvester, 143 F.3d 923, 933-34 (5th Cir. 1998), as suggesting that the Remmer presumption
has been abandoned by the United States Supreme Court). However, Mann found it
“unnecessary to reconcile existing New Mexico precedent with this more recent articulation
by the Supreme Court.” 2002-NMSC-001, ¶ 36. In the present case, Defendants claim that
a majority of jurisdictions have now rejected a presumption of prejudice in civil cases.
Defendants do not, however, ask this Court to reconcile existing New Mexico precedent with
what may be a change in the law in the federal courts and perhaps in other states. We do not
attempt any such reconciliation in this opinion.
{19} As New Mexico law stands, the presumption of prejudice does not arise unless a
sufficient preliminary or threshold showing is made to invoke it. This Court indicated in our
most recent civil case on juror misconduct that “rather than stating that courts always
presume prejudice, it may be more accurate to state that the threshold question for the trial
court is whether the unauthorized conduct creates a presumption of prejudice.” Goodloe,
1999-NMCA-061, ¶ 20 (internal quotation marks and citation omitted). This includes
consideration of whether “there is a reasonable probability or a likelihood that the extrinsic
communications or conduct would have an effect upon the verdict or upon the typical juror.”
Id. (internal quotation marks and citation omitted). This Court further stated that “courts
apply common sense to evaluate the likelihood of prejudice arising from the
communication.” Id. Similar to Goodloe’s “threshold question” is language in Doe,
repeated in Mann, that the new-trial movant who asserts juror misconduct “must make a
preliminary showing [with] competent evidence that . . . extraneous [information] actually
reached the jury.” Mann, 2002-NMSC-001, ¶ 19 (internal quotation marks and citation
omitted); Doe, 101 N.M. at 366, 683 P.2d at 48.
When Extraneous Information Is Brought to the District Court’s Attention
{20} The preliminary-showing requirement in Doe and Mann, and Goodloe’s threshold-
question requirement, indicate that upon receipt of the evidence of juror receipt of
extraneous information the district court is to make an assessment whether evidence exists
that requires invocation of the presumption-of-prejudice error. See also Budagher, 100 N.M.
at 172, 667 P.2d at 977 (determining as a threshold matter that misconduct was “serious” and
that the presumption was supported by the record). As Mann indicates, we should focus on
whether extraneous information “unfairly affected the jury’s deliberative process and
resulted in an unfair jury.” 2002-NMSC-001, ¶ 20; see also Goodloe, 1999-NMCA-061,
¶ 20 (stating that the court is to consider whether there was “a reasonable probability or a
likelihood that the extrinsic [information] would have an effect upon the verdict or upon a
typical juror” (internal quotation marks and citation omitted)); Doe, 101 N.M. at 366, 683
P.2d at 48 (stating that if a party makes the required preliminary showing and “if there is a
reasonable possibility the material prejudiced the defendant, the trial court should grant a
new trial”). We make no distinction between “preliminary” and “threshold,” and from here
on we use “preliminary.” Defendants contend that Plaintiffs failed to make the requisite
preliminary showing and, therefore, the evidence did not give rise to a presumption of
8
prejudice or require the district court to conduct any inquiry or have an evidentiary hearing.
We address this point.
{21} A juror’s testimony or affidavit in regard to the juror’s or the jury’s deliberations are
forbidden under Rule 11-606(B) NMRA. Thus, while under Rule 11-606(B), evidence of
“extraneous prejudicial information . . . brought to the jury’s attention” can be shown by a
juror’s testimony or affidavit, courts must make decisions in regard to a mistrial or a new
trial without the benefit of knowing the jury’s deliberations. The court must instead base its
ruling on the likelihood that potentially prejudicial, extraneous information “actually reached
the jury.” See Mann, 2002-NMSC-001, ¶ 19. The difficulty of making that ruling, however,
does not end the inquiry.
{22} New Mexico cases have not specifically analyzed whether one juror’s receipt of
extraneous information is sufficient to invoke the presumption of prejudice where there is
no evidence that the extraneous information actually reached other members of the jury.
Mann states that the district court is to assess whether the evidence indicates “that material
extraneous to the trial actually reached the jury.” 2002-NMSC-001, ¶ 19; see also Rule 11-
606(B) (stating that a juror may testify as to “whether extraneous prejudicial information was
improperly brought to the jury’s attention”); Doe, 101 N.M. at 366, 683 P.2d at 48 (“The
party seeking a new trial on the basis that extraneous evidence reached the jury must make
a preliminary showing that movant has competent evidence that material extraneous to the
trial actually reached the jury.”).
{23} A bit differently, this Court in Goodloe and Prudencio stated that courts are to
determine “whether there is a reasonable probability or a likelihood that the extrinsic
communications or conduct would have an effect upon the verdict or upon a typical juror.”
Goodloe, 1999-NMCA-061, ¶ 20 (internal quotation marks and citation omitted); Prudencio,
104 N.M. at 790, 727 P.2d at 555. Furthermore, Remmer states that “any private
communication . . . with a juror during a trial about the matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial.” 347 U.S. at 229. In addition, one
decision of this Court might be construed as supporting a holding that extraneous
information obtained or received by one juror can be presumptively prejudicial although
there is no evidence that other jurors were affected. See Pettigrew, 116 N.M. at 140, 860
P.2d at 782 (determining that a juror’s unauthorized contact with an intern from the public
defender’s office that created an appearance of impropriety was presumptively prejudicial).
Lack of Sufficient Preliminary Showing
{24} We need not try to resolve the foregoing issue because we think the evidence in the
present case falls short of the required preliminary showing. To begin with, a reasonable
inference can be drawn from the affidavit that the juror was conscious of her duty not to
investigate on her own or to seek information outside of the evidence. The owner’s affidavit
does not say or contain facts that directly show that the juror sought from the owner specific
facts about the type of seatbelt buckle in question. Also, at the start of trial, the court
9
instructed the jury as to “a number of important rules governing your conduct during the
trial.” The jury was told that during recesses and adjournments, while the case was in
progress, “do not discuss the case with anyone other than yourselves.” Jurors were informed
that in order to “minimize the risk of accidentally overhearing something that is not in
evidence in this case,” jurors were to wear their jury badges around the courthouse. Jurors
were admonished that “[t]hough it is natural to visit with people you meet, please do not talk
with any of the attorneys, parties, witnesses or spectators either in or out of the courtroom.”
Of particular importance, the court instructed the jurors to “not consider anything you may
have read or heard about this case outside the courtroom.” The jurors were told not to
“attempt to research, test, experiment, visit[] . . . any location involving this case or any other
investigation” and that “[s]uch conduct also runs contrary to the rule that your verdict must
be based solely upon the evidence presented to you.” The court impressed upon jurors not
to attempt to decide the outcome of the case before final deliberations. Further, the jurors
were told that the rules the court was giving the jurors “apply at all times during the trial.”
{25} During and after trial the court gave further instructions to the jury. At certain breaks
during trial, the district court instructed the jurors not to discuss the case with anyone, to
report any discussions of the case in the presence of a juror, and to avoid forming a fixed
opinion about the case before deliberations. At the close of the trial, the court instructed the
jury that it was their “duty to determine the true facts from the evidence produced here in
open court” and that their “verdict should not be based on speculation, guess or conjecture.”
{26} We presume that the jurors followed the instructions given by the court. See State
v. Benally, 2001-NMSC-033, ¶ 21, 131 N.M. 258, 34 P.3d 1134 (“We presume that the jury
followed the instructions given by the trial court, not the arguments presented by counsel.”);
State v. Smith, 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19 P.3d 254 (observing that the jury
was instructed not to draw any inference of guilt from the fact that the defendant did not
testify and that such fact should not be discussed by the jurors or enter into their
deliberations in any way, and stating that “[j]uries are presumed to have followed the written
instructions”); State v. Case, 100 N.M. 714, 719, 676 P.2d 241, 246 (1984) (stating that there
is a presumption that the jury will adhere to the court’s admonition that they will not discuss
the case or the evidence with anyone, and they will keep an open mind until the case is
completed and submitted); State v. Sellers, 117 N.M. 644, 650, 875 P.2d 400, 406 (Ct. App.
1994) (stating that “[t]here is a presumption that the jury follows the instructions they are
given”).
{27} The owner’s affidavit states that the juror in question indicated to the owner “at least
twice, that she was not supposed to be talking to me about the case.” This indicates that the
juror was aware of the court’s instructions. The affidavit does not present facts that show
that the juror actually violated any instruction. And there is nothing in evidence showing
that she actually breached any duty or engaged in misconduct in relation to the statements
between herself and the owner.
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{28} Further, the owner’s affidavit does not state that he knew or was informed about the
facts in the present case other than, it would appear, that a seatbelt buckle in a Subaru
vehicle was involved. There exists only the owner’s bare statement that he had not heard
of an accidental unbuckling. This was not a definitive statement, nor was it an opinion, as
to whether the buckle could or could not accidentally or inadvertently open or had never
opened under circumstances analogous to those in the present case or, for that matter, under
any circumstance. Plaintiffs did not present to the court any foundational statements from
the owner in regard to his knowledge and experience relating to defective AB buckles in
Subarus. Moreover, the owner’s statement seems almost inconsequential in comparison to
the substantial testimony at trial, including expert testimony, relating to whether the buckle
was negligently designed or was defective and how the buckle may have opened. In
addition, Plaintiffs were unable in this case to present evidence of an accidental unbuckling
from any particular object, such as a hand, elbow, or other object loose in the vehicle. As
we indicated earlier in this opinion, the juror heard the owner’s statement fairly early in the
trial, before or during the extensive testimony about seatbelts, and well before the jury’s
deliberations.
{29} Plaintiffs mention the juror’s failure to report to the court what the owner said. In
their memorandum in support of their motion for a new trial, Plaintiffs stated that this failure
to report compounded “the problem” because, had the court known what the owner stated,
it could have addressed the issue during trial. In oral argument before this Court, Plaintiffs’
counsel appeared to indicate that the failure to report was misconduct that would require a
new trial. We reject these notions insofar as they are intended to constitute rationales for a
new trial. We are supplied no argument or authority to support them. As well, even were
the failure to report relevant to some issue in this case, one can only speculate as to what the
juror might have reported and how the court would have handled the report.
{30} Based on the foregoing discussion, we doubt that there was a reasonable likelihood
that the owner’s statement had a significant effect on the juror’s vote in the present case.
Nor is there any reason to believe that the owner’s statement reached another member of the
jury. There exists no evidence from which such an inference can be reasonably drawn. Cf.
Saucedo v. Winger, 850 P.2d 908, 914 (Kan. 1993) (stating that if a juror’s misconduct is
“not such as to influence the jury, the misconduct will not vitiate a verdict[,] [b]ut if facts
outside of the evidence are brought before the jury based on the personal knowledge of a
juror and those facts are likely to have influenced the minds of other jurors, the verdict
should be set aside”). We are aware that a rational counter-argument is that there is no
evidence to the contrary, that is, no evidence that the juror did not discuss the information
with one or more other jurors. Nevertheless, we see nothing in the owner’s statement that
requires us to conclude that the juror would have thought so strongly about the matter or
have thought the information sufficiently significant that she likely would have conveyed
the information to other jurors.
{31} With nothing before us beyond what is in the owner’s affidavit, we hold that
Plaintiffs did not sustain their burden to preliminarily show there was a reasonable likelihood
11
that the information would have an effect on the verdict or even on a typical juror. We
cannot conclude that there was a reasonable possibility that the information prejudiced
Plaintiffs. Thus, a presumption of prejudice did not arise in this case.
Question of Evidentiary Hearing or District Court Investigation
{32} Plaintiffs nevertheless contend that they are entitled to a new trial because the district
court failed to hold an evidentiary hearing or otherwise investigate once presented with the
owner’s affidavit. We disagree and hold that the court was not required to conduct an
evidentiary hearing or to otherwise investigate further when Plaintiffs failed to make the
required preliminary showing. Mann, 2002-NMSC-001, ¶ 19; State v. Chamberlain, 112
N.M. 723, 733, 819 P.2d 673, 683 (1991) (holding that the district court did not abuse its
discretion by denying a motion for further inquiry because there was no evidence that new
evidentiary facts reached the jury during deliberations); Sena, 105 N.M. at 688, 736 P.2d at
493 (holding that the district court did not abuse its discretion by denying a motion for an
evidentiary hearing because the affidavit alleging misconduct “does not indicate that
extraneous material reached the jury”).
{33} Furthermore, in the face of Defendants’ argument that Plaintiffs failed to request an
evidentiary hearing, Plaintiffs have not shown that they requested the court with any degree
of specificity to investigate, to call jurors in for questioning, or to schedule an evidentiary
hearing because Plaintiffs intended to present testimony in support of their claim of
misconduct. In support of their contention that they did request an evidentiary hearing,
Plaintiffs assert that when they submitted a December 22, 2006, hearing package to the
district court relating to their motion for a new trial, they stated in a cover letter the “possible
need for an evidentiary hearing on the juror misconduct issue.”
{34} Nothing in Plaintiffs’ hearing package or in their motion for a new trial and
supporting memorandum discusses the need for or specifically asks the court to hold an
evidentiary hearing on the juror-misconduct issue. Nor is there any request in these
documents that the court investigate or call jurors in, and there is no discussion about or
authority showing a duty on the part of the court to do so. A party serious about an
evidentiary hearing on a juror-misconduct issue surely would proceed more forcefully than
to merely indicate a “possible need for an evidentiary hearing.” Further, in a separate
request for hearing, Plaintiffs requested only one and one-half hour for a hearing on the
entirety of their motion for a new trial and said nothing about the need for an evidentiary
hearing on the juror-misconduct issue. We see nothing in the record or briefs indicating that
Plaintiffs alerted the district court or Defendants that Plaintiffs intended to subpoena jurors
or others or to ask the court to do so.
{35} At no time after December 22, 2006, did Plaintiffs request an evidentiary hearing or
request the court to conduct any sort of investigation. On January 17, 2007, one day after
Defendants’ responses to Plaintiffs’ motion for a new trial were filed, Plaintiffs submitted
a request for an expedited hearing on their motion for a new trial. This request, which
12
reduced the estimated hearing time to only one hour, did not mention or in any way alert the
district court that Plaintiffs wanted an evidentiary hearing specifically on the juror-
misconduct issue. On the same date, the court denied Plaintiffs’ motion for a new trial
without granting the hearing Plaintiffs had requested.
{36} Plaintiffs nonetheless assert that “[t]he trial court has a duty to inquire into the
possibility of prejudice” and that “[i]n an appropriate case, the trial court should conduct an
evidentiary hearing.” Doe, 101 N.M. at 366, 683 P.2d at 48. We agree that a district court
has a duty in the appropriate case to conduct such an evidentiary hearing. See id. However,
we are not persuaded that this is the appropriate case or that the court abused its discretion
when it did not schedule an evidentiary hearing or otherwise investigate further on the juror-
misconduct issue.
{37} Given the thinness of the affidavit evidence presented to the district court, we think
it was incumbent on Plaintiffs to at the very least have provided foundational evidentiary
support beyond what was in the owner’s affidavit. In fact, Plaintiffs’ counsel’s law firm had
a legal assistant who had sat through the entire trial make “numerous attempts to contact
jurors” after the trial. The legal assistant stayed in Santa Fe for several days following trial
for this purpose. He traveled several times from Detroit, Michigan, the law firm’s place of
business, to Santa Fe to explore information regarding the juror who spoke to the owner of
the Subaru repair shop, and ultimately obtained the owner’s signature on the affidavit. As
far as we can discern from the record, Plaintiffs failed to provide any explanation to the
district court regarding the legal assistant’s or anyone else’s attempts to contact any jurors
other than the juror in question. Without more for the court to go on, and without Plaintiffs
having specifically requested the court to call jurors in, to otherwise explore the matter
further, or to hold an evidentiary hearing, we cannot say that the court abused its discretion
in not proceeding on its own to obtain the presence of jurors to testify or to otherwise
investigate or hold an evidentiary hearing, or in denying the motion for a new trial on the
extraneous information.
Exclusion of Evidence of Other Incidents and Complaints
{38} In their case in chief, in anticipation of defense witness testimony, Plaintiffs sought
to show, through an expert witness, four incidents or occurrences in the form of lawsuit
claims involving “real world accidents and claims of AB buckles opening.” The court did
not allow the evidence. Plaintiffs appeal the court’s exclusion of the evidence.
{39} “Admission or exclusion of evidence is a matter within the discretion of the trial
court and the court’s determination will not be disturbed on appeal in the absence of a clear
abuse of that discretion.” Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M.
47, 976 P.2d 999 (internal quotation marks and citation omitted). We review the admission
or exclusion of evidence for abuse of discretion. Hourigan v. Cassidy, 2001-NMCA-085,
¶ 21, 131 N.M. 141, 33 P.3d 891. “An abuse of discretion occurs when the ruling is clearly
against the logic and effect of the facts and circumstances of the case.” Coates, 1999-
13
NMSC-013, ¶ 36 (internal quotation marks and citation omitted). Furthermore, an abuse of
discretion will be found only if we can characterize the district court’s ruling “as clearly
untenable or not justified by reason.” Id. (internal quotation marks and citation omitted).
“When there exist reasons both supporting and detracting from a trial court decision, there
is no abuse of discretion.” State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185
P.3d 363 (internal quotation marks and citation omitted). “We do not find an abuse of
discretion unless the court’s ruling exceeds the bounds of all reason or is arbitrary, fanciful
or unreasonable.” Mayeux v. Winder, 2006-NMCA-028, ¶ 34, 139 N.M. 235, 131 P.3d 85
(filed 2005) (internal quotation marks and citation omitted). If evidence is erroneously
admitted or excluded, the complaining party must show prejudice to obtain a reversal. See
id. ¶ 37. “[W]e will reverse the trial court only when it is clear that the court has abused its
discretion.” Behrmann v. Phototron Corp., 110 N.M. 323, 327, 795 P.2d 1015, 1019 (1990).
{40} Plaintiffs claim that without the evidence of what they contend are similar real-world
accidents in which AB buckles opened, they were unable to defend against the anticipated
defense witness testimony “that 169 million AB buckles had been manufactured representing
‘tens of millions of . . . cars years of exposure or experience’”; “that AB buckles do not
release . . . in real[-]world accidents”; “that the vehicle and buckle manufacturers had
procedures by which they would learn about any problems with their vehicles or [seatbelts]
and that there was not a single report of an AB [seatbelt] buckle ever releasing in any
accident and that it could never happen in the ‘real world’”; and “that ‘Takata has
manufactured many buckles . . . and we have never heard [of] a buckle opening in the
marketplace.’” Plaintiffs’ purpose was to show that Defendants did have notice of AB
buckles opening and to thereby rebut the aforementioned anticipated defense testimony.
Plaintiffs go a bit too far in their brief in chief claiming they could not give the jury
important evidence on the likelihood of injury or the risk of injury resulting from the
condition of the buckle as they are entitled to do pursuant to UJI 13-1406 NMRA. This is
not the evidence they sought to present. Our review of the transcript of the hearing on this
issue indicates that Plaintiffs’ stated purpose of offering the evidence was solely “to show
that indeed there are claims out in the world, there are allegations of buckle openings against
Takata customers involving this buckle” and was intended to rebut Defendants’ evidence as
to not having received notice of such claims from customers.
{41} According to Plaintiffs, one of their expert witnesses was prepared to testify that he
conducted investigations in respect to the four cases and concluded that Takata AB buckles
had released during the crash. In their briefs on appeal, Plaintiffs nowhere specifically
describe any details, variables, or other aspects relating to these claimed similar incidents
or to their expert’s anticipated testimony. Plaintiffs appear to leave it to this Court to search
the record and to analyze and set out details as to the incidents and Plaintiffs’ positions and
arguments. We choose not to do so. “We are not obligated to search the record on a party’s
behalf to locate support for propositions a party advances or representations of counsel as
to what occurred in the proceedings.” Muse v. Muse, 2009-NMCA-003, ¶ 42, 145 N.M. 451,
200 P.3d 104 (filed 2008); see Bintliff v. Setliff, 75 N.M. 448, 450, 405 P.2d 931, 932 (1965)
(determining that our Supreme Court would not consider the argument of the appellant’s
14
counsel due to the failure to provide specific references to the record in violation of a
Supreme Court rule); Murken v. Solv-Ex Corp., 2005-NMCA-137, ¶ 14, 138 N.M. 653, 124
P.3d 1192 (“[W]e decline to review . . . arguments to the extent that we would have to comb
the record to do so.”); In re Estate of Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993 (Ct.
App. 1992) (“This [C]ourt will not search the record to find evidence to support an
appellant’s claims.”).
{42} All Plaintiffs offered were four occurrences that were the subjects of four lawsuits
that never went to trial and that consisted of claims that were never proved. Defendants
show that the claimed occurrences involved different vehicles and other crash-related
variables and that there were no conclusions as to any one cause of a buckle opening. The
district court determined that the proposed evidence had “tenuous relevance to the purpose
for which it would be offered as well as the prejudice would outweigh the probative value
and could become an inefficient presentation of evidence.”
{43} Plaintiffs’ briefing is insufficient to persuade us that the circumstances of the four
cases are sufficiently probative to hold that the district court abused its discretion in
excluding the cases from consideration. The appellate courts afford the district courts wide
latitude and discretion in deciding whether the prejudicial impact of tendered evidence
outweighs its probative value. See State v. Coffin, 1999-NMSC-038, ¶ 35, 128 N.M. 192,
991 P.2d 477; Norwest Bank N.M., N.A. v. Chrysler Corp., 1999-NMCA-070, ¶ 39, 127
N.M. 397, 981 P.2d 1215. Furthermore, the district court has discretion to reject evidence
with tenuous relevance because of the inordinate time and efficiency that could be lost in
conducting what might essentially be separate trials on the other occurrences. See Moe v.
Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 935 (10th Cir. 1984) (affirming a
district court’s conclusion that “certain tenders of evidence of other flight incidents, after the
crash [in question], would constitute a mini-trial within a trial, resulting in undue delay,
waste of time, and needless presentation of cumulative evidence” contrary to Federal Rule
of Evidence 403). We reject what appears to be Plaintiffs’ argument that they were entitled
to show little more than AB buckles allegedly opening in four other lawsuits.
{44} In addition to attempting to present the foregoing evidence of other incidents, in
cross-examining a defense expert, Plaintiffs also sought to use complaints which consisted
of verbal claims made by consumer call-in to a National Highway Transportation Safety
Administration “hotline” about buckle release in vehicles with Takata AB seatbelts.
Plaintiffs state that a defense expert testified “about the process by which consumer
complaints about [seatbelts] are passed on to vehicle manufacturers through a [nationwide]
‘Hot Line’” and that a Subaru engineer “testified that he had ‘never heard of any instance
or incident where the [seatbelt] in our vehicle released an occupant.’” According to
Defendants, Plaintiffs sought to use three complaints to counter that testimony. The court
determined that this evidence was of limited, if any, relevance and that its probative value
was outweighed by prejudice and confusion.
15
{45} Again, Plaintiffs nowhere detail in their briefs of what the complaints specifically
consisted or how the claims and circumstances were substantially similar to Plaintiffs’
claims and the circumstances in the present case. Also problematic is that it appears that no
evidence indicated that any complaint was confirmed or investigated. It is unclear whether
the circumstances and seatbelts involved were shown to be similar to those in the present
case. Again, we will not comb the record to find evidence to support a party’s position on
appeal. Muse, 2009-NMCA-003, ¶ 42; see Bintliff, 75 N.M. at 450, 405 P.2d at 932;
Murken, 2005-NMCA-137, ¶ 14; In re Estate of Heeter, 113 N.M. at 694, 831 P.2d at 993.
And again, based on what Plaintiffs have set out in their briefs, the district court did not
abuse its discretion in precluding use of the hotline complaints.
{46} In sum, Plaintiffs’ general, broad-swathe assertions of exclusion of evidence of
allegedly similar incidents and hotline complaints are insufficient to sustain Plaintiffs’
contention that the district court abused its discretion, and do not pass muster under our
briefing rules. From what Plaintiffs have presented in their briefs, we hold that the court
could rationally and reasonably have found, as it did, that the evidence had only tenuous or
limited relevance, if any, that prejudice outweighed probative value, and that admission of
the evidence would cause inefficiency, if not also confusion, in the trial. See Rule 11-403
NMRA; Olson v. Ford Motor Co., 481 F.3d 619, 623 (8th Cir. 2007) (stating, in a product-
liability case involving a vehicle’s unexpected acceleration and power-brake system, that the
reason for the “extremely deferential standard of review” under federal Rule 403 is that the
ruling “depends on factors that are uniquely accessible to the trial judge who is present in
the courtroom and uniquely inaccessible to an appellate judge who must take the case on a
cold record”); C.A. Assoc. v. Dow Chem. Co., 918 F.2d 1485, 1489 (10th Cir. 1990) (stating,
in a product-liability case involving a masonry mortar additive, that in federal Rule 403
rulings, the deference accorded “to the trial judge who is most familiar with the
circumstances . . . is particularly fitting in lengthy trials involving [a] magnitude of highly
technical expert testimony” (citation omitted)).
Surprise Theory in Opening Statement
{47} During trial, Plaintiffs filed an expedited motion in limine to exclude any evidence,
whether from a defense expert or otherwise, on what Plaintiffs considered to be a “surprise
theory” of the defense, which they asserted was first asserted in Defendants’ counsel’s
opening statement to the jury. The surprise theory about which Plaintiffs complained below
and now complain on appeal is embodied in the following statements of defense counsel
relating to Mrs. Kilgore: After saying that somebody unbuckled Mrs. Kilgore’s seatbelt after
the car stopped, then asking the question, “Who?”, and finally suggesting it could have been
one among “a lot of people at the scene who left,” defense counsel said, “And there’s
another person who was at the scene who doesn’t remember anything, [Mrs.] Kilgore.”
Following this, defense counsel asked whether Mrs. Kilgore, like Mr. Kilgore and the
granddaughter, could have unbuckled her own seatbelt. Defense counsel then explained that
an expert witness, Dr. Whitman McConnell, would explain that the soft tissue around Mrs.
Kilgore’s “hairline [neck bone] fracture” began to swell to the point where it impinged on
16
her spinal cord and that up to the point at which that impingement caused paralysis, Mrs.
Kilgore was not paralyzed and could use her right arm to unbuckle the belt.
{48} In their motion in limine, Plaintiffs stated that Dr. McConnell, a medical doctor, was
the only defense expert designated by Defendants who was possibly qualified to testify on
the sufficiency of Mrs. Kilgore’s functioning motor skills to unbuckle her seatbelt. Plaintiffs
complained that Defendants had never “disclosed that [Dr.] McConnell [would] opine
regarding [Mrs.] Kilgore’s remaining motor skills.” Plaintiffs also complained that Dr.
McConnell’s pretrial depositions were “silent on this subject.” Plaintiffs therefore asked the
district court to “preclude the defense from introducing any evidence that [Mrs.] Kilgore was
capable of, or did unlatch her [seatbelt] at the conclusion of the rollover” and from making
this argument to the jury. The district court denied Plaintiffs’ motion in limine.
{49} Plaintiffs do not assert on appeal that the court erred in denying this motion in limine.
Plaintiffs’ point on appeal is that “[t]here was no competent evidence to support the surprise
defense theory that [Mrs.] Kilgore unbuckled her own [seatbelt],” and they seek a new trial
because of defense counsel’s opening statement comments. They base this assertion on the
alleged prejudicial effect of the statements. Plaintiffs complain that the facts defense counsel
referred to in the opening statement could not be proved by Dr. McConnell or otherwise, and
Plaintiffs assert that, because of the non-disclosure of Defendants’ theory until opening
statement, their ability to cure the prejudicial comments was significantly impaired. Citing
to only a portion of two pages of a two-hour closing argument, Plaintiffs complain that this
new theory became the centerpiece of Defendants’ arguments to the jury.
{50} For the several reasons that follow, we do not see how Plaintiffs can complain. First
and foremost, Dr. McConnell had testified, and his theory was neither new nor surprising.
Second, Plaintiffs failed to object to defense counsel’s opening statement comments. See
Rule 12-216(A) NMRA. “To preserve an issue for review on appeal, it must appear that
[the] appellant fairly invoked a ruling of the trial court on the same grounds argued in the
appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App.
1987); see also State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280
(stating that in order to preserve an issue for appeal, the defendant must make a timely
objection that specifically apprises the district court of the nature of the claimed error and
invokes an intelligent ruling thereon). The primary purposes for the preservation rule are:
(1) to specifically alert the district court to a claim of error so that any mistake can be
corrected at that time, (2) to allow the opposing party a fair opportunity to respond to the
claim of error and to show why the district court should rule against that claim, and (3) to
create a record sufficient to allow this Court to make an informed decision regarding the
contested issue. State v. Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175 P.3d 942 (filed
2007); Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 38, 125 N.M. 748, 965
P.2d 332; cf. State v. Boergadine, 2005-NMCA-028, ¶ 31, 137 N.M. 92, 107 P.3d 532
(considering a prosecutor’s opening statement comments for fundamental error because, due
to lack of objection, the issue of prosecutorial misconduct was not preserved, and holding
that even though the comments were “intentional and inappropriate, the statements are not
17
sufficiently ‘egregious’ to constitute fundamental error”); State v. Neswood, 2002-NMCA-
081, ¶ 18, 132 N.M. 505, 51 P.3d 1159 (stating that, generally, the objection must be made
at the time the evidence is offered). Generally, a motion for a new trial cannot be used to
preserve issues not otherwise raised during the proceedings. Goodloe, 1999-NMCA-061,
¶ 13. Lastly, evidence given by Dr. McConnell was not fact, but opinion evidence, as
Plaintiffs properly stated in their motion in limine.
{51} Also significant, Plaintiffs took the opportunity to address the issue two days after
opening statements with an expert of their own. Dr. Martha Bidez, an expert in biochemical
engineering and injury causation, testified at some length about the manner in which Mrs.
Kilgore was injured. Dr. Bidez testified that Mrs. Kilgore’s neck fracture and paralysis
could only have occurred after the seatbelt buckle released; that is, at the point of the neck
fracture, Mrs. Kilgore was instantly paralyzed and could not have unbuckled her own
seatbelt. Since Plaintiffs’ counsel were aware of opposing counsel’s opening statement
theories and expectations of evidence to be presented to the jury, they were able to so inform
their expert. As well, Dr. Bidez had read Dr. McConnell’s pretrial depositions. She was
therefore able to read his first deposition testimony that Mrs. Kilgore’s “fracture occurred
as a result of her head impacting the roof as the roof impacted the ground as she was
restrained in the vehicle.” Dr. McConnell also testified at deposition, based on witness Joe
Russom’s statements that Mrs. Kilgore “ha[d] some hand movement” and appeared to be
suspended above the roof, and that “[a]t that point, an individual certainly could push the
button to the restraint system and release it.” Dr. Bidez nevertheless believed that Mr.
Russom lacked credibility. Her opinion does not negate Dr. McConnell’s testimony, it only
disputes it, leaving the fact for the jury to decide.
{52} While Plaintiffs complain that Dr. Bidez’s testimony was not all they would have
wanted to present to counter Defendants’ surprise theory, Plaintiffs do not explain why, with
Dr. McConnell’s deposition testimony in hand, they did not have any other or additional
expert available to testify in a manner similar to that of Dr. Bidez and in anticipation of the
testimony of Mr. Russom. Cf. Mayeux, 2006-NMCA-028, ¶ 39 (“Here, [the p]laintiffs have
alleged no prejudice besides their lack of preparation and ability to counter . . . [the expert’s]
testimony with that of another witness so late in the trial. . . . Nor have [the p]laintiffs shown
us that they asked for more time to conduct another deposition or interview of [the expert].”
(internal quotation marks omitted)).
{53} Plaintiffs might reasonably have anticipated the theory suggested in opening
statement, on the horizon. The joint pretrial order in this case listed as a contested issue of
fact “[w]hether someone unbuckled [Mrs.] Kilgore’s [seatbelt] after the car stopped[.]” Dr.
McConnell’s pertinent pretrial deposition testimony was as follows:
Q. All right. What I’d like you to do for me, Dr. McConnell, if
you would, please, is tell me the opinions and conclusions that you’ve
reached in connection with this case.
18
A. This is a rollover in which [Mrs.] Kilgore . . . was seated in
the left rear seat of a ‘98 Subaru Outback SUV-type vehicle. And at the end
of the roll, she was found to have a fractured second cervical vertebra. My
first opinion is that the fracture occurred as a result of her head impacting the
roof as the roof impacted the ground as she was restrained in the vehicle.
She sustained a left parietal hematoma or bruise resulting in a
compressive lateral bend to the right that compressed the right side of the C-2
vertebra, producing a crack from the base of the odontoid rightward into the
right mass of the second vetebra. In other words, this was a right lateralized
fracture. The end result of that was a neurological compromise that resulted
in [Mrs.] Kilgore becoming a quadriplegic.
That is pretty much the sum total of my opinions. There are [sic]
some supporting information that obviously supports that.
....
Q. Okay. Is it your opinion or have you reached any opinion
about whether Mrs. Kilgore was still belted after the accident?
A. I don’t have a scientifically based opinion. I have a
speculation, but it’s dependent upon the—upon the testimony of the
witnesses, of which you’re well aware, the differences between those
witnesses, and supposition about what happened.
Q. Okay. Well, what you’re going to give me, then, isn’t an
opinion that you hold with some reasonable degree of medical certainty or
scientific certainty. Correct?
A. That’s correct.
Q. It’s just a supposition based on what you’ve read and what
you kind of think might be the case. Right?
A. That’s correct.
Q. All right. Well, with that proviso, why don’t you go ahead
and tell me what our speculation is.
A. I think that she was probably hanging upside down in the
restraint system as the vehicle came to rest and as the witnesses came on
scene. Joe Russom and his testimony that says that she has some hand
movement and she appears to be suspended above the roof. Her head seems
19
to be suspended above the roof. As Dr. Mettler comes on scene and he sees
Mrs. Kilgore, his impression is that she’s on the roof, and this is sometime
in the same time frame that the apparently undiscovered individual
approaches from the other side of the vehicle and goes in to help extricate her
from inside the vehicle. At that point, an individual certainly could push the
button to the restraint system and release it. And the rest of the findings
would be consistent with the exception of [the granddaughter’s] testimony,
such as it is.
{54} Further testimony of Dr. McConnell related to swelling. Defendants suggest that this
testimony indicated that swelling and its pressure on the spinal cord caused Mrs. Kilgore’s
spinal cord injury. The testimony was as follows.
Q. Did you see evidence in your review of the films of the
epidural hematoma between the skull base and C-2?
A. There was, but it’s really not very dramatic.
Q. What caused that, in your opinion?
A. Very likely that is an acute injury—acute injury-related
finding, and that’s the swelling that you get when you’ve got injured tissue.
It’s the body’s response to an injury.
Q. Where was the injury that it was responding to?
A. The fracture at C-2. Possibly a ligamentous injury is in
relationship to that.
Q. . . . The diffusely narrowed spinal canal in the area of C-2,
was that, in your opinion, caused by the accident, or is that simply a
preexisting condition?
A. I think there was more that went along with that, that they
were talking about edema [swelling] with diffuse narrowing. And if indeed
that was the case, the edema was most likely associated with the injury.
Q. When they talk about narrowing of the canal, I mean, the
canal is formed by the hole in the vertebral body. Correct?
A. But it’s lined with the dural lining and the lining of the cord,
and both of those can swell when they’re injured.
20
Q. All right. So the narrowing in the canal in the area of C-2 is
most likely associated with her acute injury?
A. I think so.
Defendants suggest that Plaintiffs should have asked follow-up questions relating to the
timing of the swelling—questions, for example, such as “How soon after the crash did the
swelling start?” or “How long after the swelling started did [Mrs.] Kilgore become
paralyzed?” Both parties argue what Plaintiffs might have done with Dr. McConnell’s
opinion. The fact is simply that Plaintiffs did not pursue evidence of which they were aware
and which they seem to regret now not pursuing. We are not called upon to substitute
hindsight regarding trial tactics.
{55} We acknowledge, as Plaintiffs assert, that in Chavez v. Chenoweth, 89 N.M. 423,
427, 553 P.2d 703, 707 (Ct. App. 1976), this Court stated that it is improper for counsel to
refer to facts in an opening statement which cannot be proved. This statement in Chavez
does not require a new trial in the present case. The circumstances in Chavez were
considerably different. Furthermore, testimony about Mrs. Kilgore possibly releasing her
own belt is not a fact. It is an opinion. Counsel stated that Dr. McConnell would explain
that the soft tissue around Mrs. Kilgore’s fracture began to swell to a point it impinged on
her spinal cord and caused paralysis, leaving open, based on Mr. Russom’s testimony and
other evidence, the possibility that Mrs. Kilgore was not paralyzed and could use her right
arm to unbuckle the seatbelt. Dr. McConnell testified in that manner not only in his
deposition taken during trial, but also during his trial testimony when he testified that he
could not rule out that Mrs. Kilgore might have had motor function and might have
unbuckled her seatbelt. We cannot categorically say that counsel in his opening statement
stated a fact that could not be proved in this case. Dr. McConnell’s opinion as to the injuries
and their effect, or lack thereof, were a matter only of the weight the jury placed on them.
{56} Taking another approach, Plaintiffs also contend on appeal that Dr. McConnell’s
“self-unbuckling” testimony was speculative and did not satisfy the reliability requirement
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as adopted in
State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). In the district court, Plaintiffs
objected to Dr. McConnell’s anticipated testimony only on the ground of non-disclosure, not
on Daubert grounds. Plaintiffs do not in their briefs otherwise indicate where they preserved
this issue. Plaintiffs’ attempt in their reply brief to show preservation by citing to the fact
that it was raised in post-verdict proceedings on their motion for a new trial is unavailing.
As we indicated earlier in this opinion, generally, the objection must be made at the time the
evidence is offered, Neswood, 2002-NMCA-081, ¶ 18, and a motion for a new trial cannot
be used to preserve issues not otherwise raised during the proceedings, Goodloe, 1999-
NMCA-061, ¶ 13, more so when not raised in the brief in chief. We decline to review
Plaintiffs’ Daubert argument.
Admission of Testimony Relating to a Press-Ball Test
21
{57} We review the admission of evidence for abuse of discretion pursuant to the cases
and rules discussed earlier in this opinion. See Moreland, 2008-NMSC-031, ¶ 9; Coates,
1999-NMSC-013, ¶ 36; Behrmann, 110 N.M. at 327, 795 P.2d at 1019; Hourigan, 2001-
NMCA-085, ¶ 21.
{58} Plaintiffs assert error in the district court’s having permitted certain defense witness
deposition testimony in regard to “press-ball test 33” to be read to the jury, along with the
other deposition testimony of the expert that was being introduced in regard to Takata’s
buckle-test protocol. The offensive deposition testimony, as characterized by Plaintiffs,
involved a “speculative two-kilogram force limitation” that was not in any written test
protocol. Plaintiffs assert that the written test protocol did not specify how much force on
the buckle button was required in order to release it and that adding the objectionable
testimony to the written test protocol had the prejudicial effect of changing the testing result
in which the buckle “demonstrably failed” into one in which the buckle passed the test.
{59} The deposition testimony at issue was elicited during Plaintiffs’ examination of the
witness. When the deposition testimony was presented to the jury, Plaintiffs sought to edit
out the testimony of the two kilogram force, primarily, if not solely, on the ground that it was
“mere speculation.” The court allowed the testimony to be read to the jury.
{60} On appeal, Plaintiffs claim reversible error in admitting this testimony on the grounds
that (1) the testimony was a critical piece of evidence for Defendants, because without it the
AB buckle demonstrably failed Takata’s own test requirements, and with the two-kilogram-
force limit added to the test, Defendants intended to show that the buckle passed the test; and
(2) the testimony was “incompetent, speculative and false” and should not have been
allowed in order to demonstrate that the buckle was not defective because it passed the
press-ball test when performed with no more than two kilograms of force to the ball. Thus,
Plaintiffs contend that the district court committed prejudicial error by allowing a defense
witness to go outside of Takata’s written test protocol and to speculate that the buckle could
meet a particular test that Takata used in determining the susceptibility of the buckle to
accidental release.
{61} The written test, known as “Test 33” and also apparently referred to as an “elbow
test,” involved the use of various diameter steel balls pushed against the AB buckle release
button. Plaintiffs’ approach at trial was to show that under Test 33 a thirty-millimeter-
diameter ball was used with unmeasured force to test if the buckle would open, and once the
buckle failed this test, the result would be that the buckle did not meet Takata’s
specifications. Important for Plaintiffs’ arguments, the written protocol for Test 33 did not
contain any specification or description of a quantitative maximum force to be applied when
pushing on the release button with the thirty-millimeter-diameter ball. One or more of
Plaintiffs’ experts demonstrated that the AB buckle could be opened by pressing a thirty-
millimeter ball against the buckle release button with a modest but unmeasured force akin
to an elbow pressing on the buckle button.
22
{62} Plaintiffs complain that Defendants had a Takata engineer make up two test
conditions that were not in the protocol and were of trivial quantitative force that would not
open or deform the buckle when Defendants recognized that the AB buckle failed Takata’s
written test protocol.
{63} The testimony on the two-kilogram measurement at issue was essentially as follows:
Q. And is there any measurement of the load or is it just that the
person can push the ball with whatever load he is comfortable with so long
as it does not bend or deform the housing or other parts?
....
THE WITNESS: The person who opens doing this testing would
be intentionally trying to cause the opening or separation. . . .
Perhaps it is more likely that the separation or opening would occur.
[The load is applied at the level that no deformation would be caused.]
So perhaps it would be along the level of two kilograms or so, I
would imagine.
Pressed further with the question whether he measured it, the witness answered, “I’m
guessing, but it would be about two kilograms.” Thus, Plaintiffs contend that the two-
kilogram testimony was speculative; whereas, Defendants contend that it was an estimation
based on the witness’s personal involvement in developing the AB buckle for Takata, that
the load is such that you do not deform the outer housing of the buckle, and that the issue is
not admissibility, but weight and credibility.
{64} We are not persuaded that the district court committed reversible error. “Our courts
have repeatedly recognized that the trial court is in the best position to evaluate the effect
of trial proceedings on the jury.” Norwest Bank N.M., N.A., 1999-NMCA-070, ¶ 39; see
Romero v. State, 112 N.M. 332, 334, 815 P.2d 628, 630 (1991) (“The trial court [is] in the
best position to determine if, in the overall context of the case, evidence . . . was relevant.”),
receded from on different grounds by Dunleavy v. Miller, 116 N.M. 353, 862 P.2d 1212
(1993).
For this reason, the trial court is vested with broad discretion to determine
under Rule 11-403 whether the probative value of evidence is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. We will not disturb the trial court’s decision on appeal
unless that discretion is abused. We will find an abuse of discretion when the
court’s decision is without logic or reason, or that it is clearly unable to be
defended.
23
Norwest Bank N.M., N.A., 1999-NMCA-070, ¶ 39 (internal quotation marks and citations
omitted). “[T]he complaining party on appeal must show the erroneous admission . . . of
evidence was prejudicial in order to obtain a reversal.” Cumming v. Nielson’s, Inc., 108
N.M. 198, 203-04, 769 P.2d 732, 737-38 (Ct. App. 1988). This burden includes having to
show a “high probability that the improper evidence may have influenced the factfinder.”
Santa Fe Custom Shutters & Doors, Inc. v. Home Depot U.S.A., Inc., 2005-NMCA-051,
¶ 32, 137 N.M. 524, 113 P.3d 347 (internal quotation marks and citation omitted). “The
admission of expert testimony is within the sound discretion of the court and its decision will
not be overturned unless an abuse of discretion is shown.” Leithead v. City of Santa Fe,
1997-NMCA-041, ¶ 27, 123 N.M. 353, 940 P.2d 459.
{65} We hold that the district court did not abuse its discretion in allowing the two-
kilogram testimony to be read to the jury along with the remainder of the testimony that was
elicited by Plaintiffs. The witness’s credibility and the weight to be given to the testimony
were for the jury.
CONCLUSION
{66} The district court did not abuse its discretion in denying Plaintiffs’ motion for a new
trial based on claims of juror misconduct, of improper comments in opening statement, and
of erroneous evidentiary rulings. We affirm the defense verdict.
{67} IT IS SO ORDERED.
____________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
____________________________________
RODERICK T. KENNEDY, Judge
____________________________________
LINDA M. VANZI, Judge
Topic Index for Kilgore vs. Fuji Heavy Industries, Ltd., No. 27470
AE APPEAL AND ERROR
AE-PA Preservation of Issues for Appeal
AT ATTORNEYS
AT-CT Comments by Attorneys at Trial
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CP CIVIL PROCEDURE
CP-MN Motion for New Trial
EV EVIDENCE
EV-EW Expert Witness
EV-SC Scientific Evidence & Daubert Standard
JR JURIES
JR-IC Improper Juror Communication
JR-PJ Propriety of Juror Conduct
NG NEGLIGENCE
NG-NG Negligence, General
NG-CW Crashworthiness
TR TORTS
TR-PR Products Liability
25