July 21, 2009 – Jose Sandoval v. Baker Hughes Oilfield Opersations, Inc., No. 28,266

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CORRECTION PAGE: Added Robert Trenchard, Jr. and Paul Tellez for Trenchard & Hoskins firm in El Paso, TX, as attomeys for Appellee.
S-Cc-K, filed July 21, 2009.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: July 21, 2009

NO. 28,266

JOSE SANDOVAL,
Plaintiff-A ppellee,
V.

BAKER HUGHES OILFIELD
OPERATIONS, INC.,

Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Trenchard & Hoskins
Royce E. Hoskins
Roswell, NM

Robert ‘Trenchard, Jr.
Paul Tellez

El Paso, TX

for Appellee

CORRECTION PAGE: Added Robert Trenchard, Jr. and Paul Tellez for Trenchard & Hoskins firm in El Paso, TX, as attorneys for Appellee.
S-Cc-K, filed July 21, 2009.
Montgomery & Andrews, P.A.
Sarah M. Singleton
Jaime R. Kennedy
Santa Fe, NM
Holland & Hart, LLP
Trent A. Howell
Larry J. Montaño
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Baker Hughes Oilfield Operations, Inc. appeals following an
unfavorable $2.2 million verdict in this negligence action. Defendant asserts error in
denying its motion for a new trial or a remittitur, claiming that (1) insofar as the
verdict was based on future damages, the verdict was not supported by substantial
evidence, and (2) the evidence did not justify the amount of the award and was
excessive because of Plaintiff’s counsel’s improper closing argument that tainted the
verdict by “passion, prejudice, partiality, sympathy, undue influence, or a mistaken
measure of damages.” In this opinion, we reduce this string of descriptive nouns to
“passion or prejudice.” Defendant also claims that the court erred in awarding post-
judgment interest at a rate of 15%.
{2} 	We affirm the verdict and judgment. We hold that the court did not abuse its
discretion or otherwise err in any regard. The evidence justified the amount awarded
and was not grossly out of proportion to the evidence and substantial evidence
supported the verdict. 	Defendant’s passion or prejudice argument is unavailing
because Defendant failed to preserve the underlying improper-closing-argument
ground and the circumstances do not require us to overlook the preservation failure.

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BACKGROUND
{3} 	Plaintiff Jose Sandoval worked for Key Energy and was injured in mid-
December 2005 while assisting an employee of Defendant in setting a packer tool in
an oil well owned by Latigo Petroleum. 	The tool was owned and operated by
Defendant. 	Defendant and its employee, Johnny Taylor, were on site supervising
operations related to setting the packer tool. Precision Wireline (Precision) was the
operator that ran a wire, which was connected to the tool, from its truck. Precision
experienced engine trouble that caused the process of powering and running the tool
into and out of the well to be delayed several hours.
{4} 	After the packer tool was finally set and brought to the surface, Mr. Taylor
attempted to release the pressure from the tool, but he experienced a problem with the
tool’s primary bleed-off port and unsuccessfully tried various customary ways to
accomplish the release. Mr. Taylor and others then attempted to unscrew the tool, at
which time the tool blew apart, and the handle of the chain tongs that were attached
to the tool struck Plaintiff and fractured his right femur.
{5} 	Plaintiff sued only Defendant and only in negligence, claiming that Defendant
failed to provide a safe place to work and safe equipment, failed to keep a proper
lookout, failed to adequately supervise the work being performed in a safe manner,

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and directed work to be performed in an unsafe manner. The jury found Defendant
to be 100% at fault and awarded Plaintiff damages in the sum of $2.2 million.
{6} 	Defendant filed a motion for a new trial or, alternatively, for remittitur,
asserting that the verdict was grossly out of proportion to the injury and shocked the
conscience. One ground was that the award of damages “for future loss of earnings
and/or pain and suffering” was not supported by the evidence. 	Another was that
Plaintiff’s counsel’s closing argument inflamed the jury’s passion or prejudice which
lead to an exorbitant and improper verdict. 	The district court denied Defendant’s
motion.
{7} 	Defendant appealed from the court’s final judgment that awarded Plaintiff $2.2
million plus pre-judgment and post-judgment interest. Defendant also appealed from
the court’s order and amended order that denied Defendant’s motion for a new trial
or, alternatively, for remittitur.
{8} 	In its brief in chief, Defendant contends in its first point that the evidence is not
sufficient to support the amount awarded. Defendant points to undisputed evidence
that Plaintiff’s special damages relate to his medical bills and lost wages totaling
approximately $100,000; that Plaintiff’s leg is fully healed; that Plaintiff is capable
of returning to his old job; that Plaintiff did not sustain permanent muscle damage or
bone deformation to his leg; and that Plaintiff’s future pain and suffering would be

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limited to a dull ache during wet or cold weather, treatable with little or no
medication. Thus, Defendant contends, neither the high-end estimate of $600,000 for
loss of future earnings nor the approximate $1.5 million remaining for pain and
suffering is supported by substantial evidence, and the district court therefore erred
in not granting Defendant’s motion for a new trial or remittitur. Defendant actually
asserts that there is no evidence presented to support permanent pain except for a
residual dull ache in the leg during cold or wet weather, and there is no evidence
presented to support loss of future earnings. Defendant also argues that Plaintiff failed
to prove loss of future earnings with reasonable certainty, arguing that whether
Plaintiff would have been promoted to a higher position is speculative.
{9} 	Defendant contends in its second point that the verdict amount is excessive and
shocks the conscience. 	Defendant essentially argues that the jury’s factually
unsupported, excessive award was reached based on Plaintiff’s counsel’s improper
closing argument and on passion or prejudice, and thus the jury’s deliberations and
verdict were tainted by passion or prejudice.
{10} 	In oral argument, Defendant re-structured the foregoing two points. Defendant
maintained that, under its first point, the amount of the verdict shocked the conscience
and that in measuring what shocks the conscience, this Court examines other
instructive cases in which courts have determined whether an award was excessive.

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Defendant argued that its substantial evidence contention in the first point was to be
decided primarily, if not solely, on the basis of whether the verdict shocked this
Court’s conscience. 	Defendant maintained that its second point, which was that
Plaintiff’s counsel’s closing argument remarks were improper and caused the jury’s
verdict to be tainted, was completely independent of its first point, and thus not
affected were we to determine that the amount of the verdict was supported by
substantial evidence. We address Defendant’s arguments as they are presented in its
briefs. However, we assimilate Defendant’s various arguments into what we believe
constitutes its essential contentions. 	We believe we cover all of Defendant’s
arguments. No tack Defendant has taken persuades us that the district court erred or
that the verdict should be overturned.
{11} 	Defendant contends in its third and final point that the district court erred in
awarding a 15% instead of an 8.75% post-judgment interest rate. 	We are
unpersuaded.
DISCUSSION
I. 	The Excessive-Verdict Issues
A. 	Standards of Review
Substantial Evidence

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{12} 	The generally applicable substantial evidence standard is that we review the
sufficiency of the evidence to support the verdict by examining whether the verdict
is supported by “such relevant evidence that a reasonable mind would find adequate
to support a conclusion.” Weststar Mortgage Corp. v. Jackson, 2003-NMSC-002, ¶ 8,
133 N.M. 114, 61 P.3d 823 (filed 2002) (internal quotation marks and citation
omitted). 	We “review all evidence in the light most favorable to the verdict and
resolve all conflicts in the light most favorable to the prevailing party.” Id. Defendant
assigns this standard of review to its first point on appeal.
Abuse of Discretion
{13} 	The applicable standard in reviewing the denial of a motion for a new trial or
remittitur is abuse of discretion. See State v. Mann, 2002-NMSC-001, ¶ 17, 131 N.M.
459, 39 P.3d 124 (“This Court will not overturn a trial court’s denial of a motion for
a new trial unless the trial court abused its discretion.”); Kestenbaum v. Pennzoil Co.,
108 N.M. 20, 29, 766 P.2d 280, 289 (1988) (“Refusal to grant a new trial will only be
reversed where it is found to be an abuse of discretion.”). 	Defendant assigns this
standard of review to its second point on appeal.
{14} 	“An abuse of discretion occurs when a ruling is clearly contrary to the logical
conclusions demanded by the facts and circumstances of the case.” 	Sims v. Sims,
1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. “When there exist reasons both

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supporting and detracting from a trial court decision, there is no abuse of discretion.”
Moreland, 2008-NMSC-031, ¶ 9 (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). 	Furthermore, this Court will determine that a district court has
abused its discretion “when it applies an incorrect standard, incorrect substantive law,
or its discretionary decision is premised on a misapprehension of the law.” Klinksiek
v. Klinksiek, 2005-NMCA-008, ¶ 4, 136 N.M. 693, 104 P.3d 559 (filed 2004) (internal
quotation marks and citation omitted). In addition, we have ruled that “[w]here the
court’s discretion is fact-based, we must look at the facts relied on by the trial court
as a basis for the exercise of its discretion, to determine if these facts are supported by
substantial evidence.” Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 60, 134 N.M.
77, 73 P.3d 215 (internal quotation marks and citation omitted).
{15} 	It is reasonable to conclude that a damages award that is clearly out of
proportion to an injury or that shocks the conscience or that is not supported by the
evidence would be one against the logic and effect of the facts and circumstances
before the court, or against the reasonable, probable, and actual deductions to be
drawn from the facts and circumstances of the case. Cf. State v. Hargrove, 81 N.M.

8
145, 147, 464 P.2d 564, 566 (Ct. App. 1970) (stating that “an abuse of discretion is
an erroneous conclusion and judgment, one that is clearly against the logic and effect
of the facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn from such facts and circumstances” (internal quotation marks
and citation omitted)).
B. 	Guidelines for Considering the Excessive-Verdict Issue
{16} 	“The question of excessiveness is determined by (1) whether the evidence,
viewed in the light most favorable to plaintiff, substantially supports the award and
(2) whether there is an indication of passion, prejudice, partiality, sympathy, undue
influence or a mistaken measure of damages on the part of the fact finder.” Chavez
v. Atchison, Topeka & Santa Fe Ry., 77 N.M. 346, 351, 423 P.2d 34, 37 (1967). We
have stated that the award is excessive if either of these tests is met. Gonzales v. Gen.
Motors Corp., 89 N.M. 474, 480, 553 P.2d 1281, 1287 (Ct. App. 1976). In Sandoval
v. Chrysler Corp., 1998-NMCA-085, ¶ 9, 125 N.M. 292, 960 P.2d 834, we repeated
the Chavez test when determining “whether an award is so excessive that it shocks the
conscience.”
{17} 	We are given a further guideline by our Supreme Court:
[T]he findings of the jury should not be disturbed as excessive, except
in extreme cases, as where it results from passion, prejudice, partiality,
sympathy, undue influence, or some corrupt cause or motive where
palpable error is committed by the jury, or where the jury has mistaken

9
the measure of damages. However, the mere fact that a jury’s award is
possibly larger than the court would have given is not sufficient to
disturb a verdict.
Richardson v. Rutherford, 109 N.M. 495, 503, 787 P.2d 414, 422 (1990) (alteration
in original) (internal quotation marks and citation omitted).
{18} 	“The amount of awards necessarily rests with the good sense and deliberate
judgment of the tribunal assigned by law to ascertain what is just compensation, and[]
in the final analysis, each case must be decided on its own facts and circumstances.”
Sandoval, 1998-NMCA-085, ¶ 13 (internal quotation marks and citation omitted). We
are skeptical about the usefulness of comparing awards for pain and suffering in other
cases. See Sweitzer v. Sanchez, 80 N.M. 408, 409, 456 P.2d 882, 883 (Ct. App. 1969)
(stating that it is improper to compare an award in one case with awards made in other
cases and that what other juries have done in cases involving similar injuries “is of no
consequence” (internal quotation marks and citation omitted)); Martinez v. Teague,
96 N.M. 446, 452, 631 P.2d 1314, 1320 (Ct. App. 1981) (“We are warned by Sweitzer
. . . that the comparison of awards is improper because the question of prejudice must
be determined from the evidence in the case.”). 	But see Nava v. City of Santa Fe,
2004-NMSC-039, ¶ 20, 136 N.M. 647, 103 P.3d 571 (determining that the amount of
an award for emotional distress was excessive and citing a case that did the same).

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{19} 	On appellate review, we will not weigh the evidence; therefore, an appellant’s
argument that a verdict is excessive based on evidence that conflicts with evidence
that supports the verdict will not aid the appellant. See Chavez, 77 N.M. at 351, 423
P.2d at 37-38. Only in extreme cases will an award of damages be found excessive.
Id. at 351, 423 P.2d at 38; Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112,
¶ 35, 125 N.M. 748, 965 P.2d 332.
{20} 	“In the absence of an unmistakable indication of passion or prejudice, a
reviewing court will not set aside a jury’s award of damages unless the amount of the
verdict in light of the evidence indicates the jury was influenced by prejudice, passion,
or other improper considerations.” Baxter v. Gannaway, 113 N.M. 45, 48, 822 P.2d
1128, 1131 (Ct. App. 1991). 	A jury’s damages award will be upheld unless “it
appears that the amount awarded is so grossly out of proportion to the injury received
as to shock the conscience.” 	Lujan v. Reed, 78 N.M. 556, 564, 434 P.2d 378, 386
(1967); Martinez v. Ponderosa Prods., Inc., 108 N.M. 385, 386, 772 P.2d 1308, 1309
(Ct. App. 1988).
C. 	Our Approach to Review of the Excessive-Verdict Issue
{21} 	Defendant’s contentions attacking the verdict as excessive ultimately boil down
to a contention that the evidence does not justify the amount of the award. 	Stated
differently, the contention is that the amount awarded is grossly out of proportion to

1 	We cannot pass up mentioning one court’s view on how to determine	14
excessiveness, as stated in Smith v. Botsford General Hospital, 309 F. Supp. 2d 927,	15
933 (E.D. Mich. 2004), aff’d in part, rev’d in part on other grounds by 419 F.3d 513	16
(6th Cir. 2005). The court stated it was “not alone in its thinking as to the lack of clear	17
standards in determining excessiveness,” and the court quoted comments of a judge	18
made in a sexual harassment case in which the jury awarded $21 million: “[I]s this	19
[issue of whether a verdict is excessive] merely going to become one of those areas	20
of law in which we know it when we see it[?]” Id. at 933 n.2. We assume the judge	21
was borrowing Justice Stewart’s approach to recognizing pornography: “I know it	22
when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).	23
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the evidence of Plaintiff’s pain and suffering and work limitations that prevent him
from returning to his pre-injury employment position. Defendant seeks to verify the
conclusion stated in the foregoing contention with three arguments: the award shocks
the conscience; other, similar decisions confirm that the award is excessive; and the
award is “so unrelated to the injury and actual damages prove[d] as to plainly manifest
passion and prejudice” from Plaintiff’s counsel’s closing argument. See Nava, 2004-
NMSC-039, ¶ 20.
{22} 	The proper approach is to examine Plaintiff’s evidence related to damages and
determine whether that evidence could justify the amount of the verdict, or determine
whether the verdict amount was grossly out of proportion to the evidence of Plaintiff’s
pain and suffering and work limitations that prevented him from returning to his pre-
injury employment position. Our case law appears to instruct us to determine whether
the disproportionality shocks our conscience. 1 See Lujan, 78 N.M. at 564, 434 P.2d
at 386; Sandoval, 1998-NMCA-085, ¶ 9; Martinez, 108 N.M. at 386, 772 P.2d at

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1309. If we determine this issue against Plaintiff, we question the need to turn to the
issue of passion or prejudice, because the essential element for Defendant’s passion-
or-prejudice 	argument, 	that 	of 	an 	excessive 	verdict, 	is 	necessarily 	missing.
Nevertheless, our case law indicates that passion or prejudice might independently be
a basis on which to determine that an award is excessive. 	See Sandoval, 1998-
NMCA-085, ¶ 9; Gonzales, 89 N.M. at 480, 553 P.2d at 1287. And Defendant argues
that independence on appeal.
{23} 	We 	first 	address 	Defendant’s 	sufficiency 	of 	evidence 	and 	excessive-
verdict/disproportionality points after setting out the evidence essential to resolution
of those issues. We hold that there was sufficient evidence for the jury to consider
future damages and to arrive at an award based on future damages. We further hold
that because the evidence justified the amount of the award and the award was not
grossly disproportionate to the evidence, the district court did not abuse its discretion
in 	denying 	Defendant’s 	motion. 	We 	then 	turn 	to 	Defendant’s 	excessive-
verdict/passion-or-prejudice point and determine that it cannot survive our holding
that the evidence justified the award and the award was not grossly disproportionate
to the evidence. We also determine that Defendant failed to preserve the underlying
arguments on which it bases its passion-or-prejudice contention.
II. 	Defendant’s Contentions Relating
to Evidentiary Support for the Verdict

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{24} 	Showing that Plaintiff’s special damages of medical expenses and lost wages
totaled no more than approximately $100,000, Defendant contends in its first point on
appeal that the remaining $2.1million of the verdict was “purportedly intended to
compensate Plaintiff for pain and suffering and loss of future earnings.” Defendant
asserts that the highest possible lost future earnings estimate was no more than
$600,000, leaving an approximate $1.5 million award for Plaintiff’s pain and
suffering. Defendant argues that Plaintiff did not prove future damages “based upon
evidence adduced at trial” or within the “reasonable certainty” that is required in New
Mexico law. See Sanchez v. Martinez, 99 N.M. 66, 71-72, 653 P.2d 897, 902-03 (Ct.
App. 1982) (stating that an award of damages “must be based upon the evidence
adduced at trial”).
{25} 	A party seeking to recover damages has the burden of proving the existence of
injuries and resulting damage with reasonable certainty. Rael v. F & S Co., 94 N.M.
507, 511, 612 P.2d 1318, 1322 (Ct. App. 1979) (“Damages based on surmise,
conjecture or speculation cannot be sustained. 	Damages must be proved with
reasonable certainty. There is no exception to the . . . rule for future damages. The
ultimate fact which the plaintiff has the burden of proving is future damages
reasonably certain to occur as a result of the original injury.” (citations omitted)).
A. 	The Evidence

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Surgery and Hospitalization
{26} 	Plaintiff suffered severe pain following the injury and was given pain
medication. 	The injury was a comminuted fracture of the right femoral shaft with
foreshortened muscle tissue. The surgeon, Dr. Harmston, had to cut open the leg to
reduce and set the fracture; he described the fracture as unlike anything he had seen
in complexity and difficulty in twenty years of treating similar injuries. 	In his
deposition testimony, the surgeon described the surgery in part as follows:
It was at the point of struggling because of his large size, he’s a
large man to begin with in terms of his thigh and his muscle, and this
complicated by the amount of swelling and foreshortening caused by the
fracture . . . that I actually, after numerous attempts to reduce the fracture
with this small reaming rod or guide rod, . . . actually physically reduced
his fracture, and that was not an easy task by itself. It was very difficult.
The broken femur required the placement of a metal rod and screws, and Plaintiff also
had muscle and soft tissue damage, resulting in Plaintiff’s complaints of pain and
fatigue over time.
{27} 	Following surgery, which was the day after the injury occurred, Plaintiff
continued to experience pain while in the hospital. 	He was in the hospital
approximately eight days. By March 2006 Plaintiff was released to clerical duty, one-
half day work.
Timothy Ryan, Physical Therapist

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{28} 	Physical therapy was concluded in September 2006. 	A functional capacity
evaluation (FCE) of Plaintiff, overseen by physical therapist Timothy Ryan, was
performed on September 21, 2006. The FCE showed that, under the Department of
Labor Physical Demand Classification, Plaintiff was physically capable of returning
to “very heavy work,” but Mr. Ryan’s recommendation at the time was that Plaintiff
only do “heavy work.” This recommendation was made for the purposes of trying to
prevent 	future 	injury. 	In 	his 	trial 	testimony, 	Mr. 	Ryan 	indicated 	that 	his
recommendation was definite at the time of the FCE, but he also indicated that if
Plaintiff “continued to exercise . . . and try and make further gains, there’s a
possibility that things could change.” 	Under the “very heavy” description and
consistent with what Mr. Ryan had seen in the field, Plaintiff would be required to lift
130 pounds from the ground; at the time of the FCE, he was able to lift 120 pounds
and “he couldn’t quite do the 130.” Plaintiff was “quite strong,” but “wasn’t able to
squat at all” and “was able to kneel for a couple of minutes, but with complaints of
pain.” “As pain increased, his heart rate increased.” Further, Plaintiff was able to
climb stairs “without a lot of problems” and was able to climb a ladder, but he had
complaints of pain doing either activity. Thus, Plaintiff was able to function, but had
difficulty “because of pain, and weakness and the situation, you know, the recovery
of his leg.” When questioned about Plaintiff’s muscle weakness in his right lower

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extremity, Mr. Ryan stated that Plaintiff was graded “4 over 5” in the hip and
quadriceps, which meant 80% when compared to Plaintiff’s left side of “5 over 5,”
which is normal.
{29} 	Mr. Ryan was asked whether the results of the FCE indicated whether Plaintiff
could go back to work as a floorhand, derrickman, or operator. He responded that at
the time of the test Plaintiff would have had marked difficulty doing that work
because of the climbing and squatting, and Plaintiff was not at the level of what was
required of everybody else. He was asked by the jury whether, once Plaintiff had the
screws removed in his second surgery, he could make a full recovery and be able to
perform the same line of work, or would he continue to have a slight disability. He
answered:
It’s rare with a screw removal or a pin removal for me to ever see those
patients again. It’s a pretty rare situation where they would come back
for further rehabilitation. You know, if nothing else has changed from
where he was when I did the [FCE] testing, I wouldn’t have—unless I
could actually quantify what he did in terms of lifting again, I don’t
know that he would make any further recovery than he already has.
Concerning Mr. Ryan’s experience with the recovery of patients who had an
intermedillary rod placed in their femur, he testified that Plaintiff would be in “the top
five percentile of recovery of those people.”

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Dr. Harmston, Surgeon
{30} 	In his August 2007 deposition, which was read at trial, Dr. Harmston was asked
whether Plaintiff’s fatigue and pain at the end of the day was caused by the rod and
screws in his leg or whether that was “more . . . muscle and scar related.” 	Dr.
Harmston responded that it was most likely the soft tissue and muscle around the
fracture that caused fatigue and limited his normal endurance. In regard to Plaintiff’s
discomfort with the rod and screws in his leg, Dr. Harmston stated that intramedillary
rods “can be uncomfortable during the winter[,] . . . can . . . cause the bone sometimes
to feel colder and make the limb feel colder[; symptoms that] sometimes . . . don’t
disappear until the metal is actually harvested from the limb.” Dr. Harmston also said
that “some of the discomfort that [Plaintiff] felt when he did deep repetitive squatting
and kneeling might” result from “the presence of the rod and the screws up near the
hip where the rod entered.” 	That may have caused “scarring and irritation in the
muscle of his thigh” caused by “the fracture . . . that would not be altered by the metal
removal.”
{31} 	In regard to removing the screws and the continuing discomfort afterward, Dr.
Harmston stated that “some of the discomfort that [Plaintiff] felt when he did deep
repetitive squatting and kneeling might be secondary to the presence of the rod and
the screws up near the hip where the rod entered.” However, Dr. Harmston stated that

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“[s]ome of that limitation . . . is probably from scarring and irritation in the muscle of
his thigh [which] . . . was initially injured from the fracture, and that would not be
altered by the metal removal.”
{32} 	In addition to testifying that the fracture had healed, Dr. Harmston stated that
the fracture was “very stable . . . for the most part” and that the surgery outcome was
successful. Reading from a physical therapy evaluation which circled “excellent” in
reference to Plaintiff’s physical therapy rehabilitation potential, Dr. Harmston
indicated that “excellent” was correct—he felt that Plaintiff’s “rehab potential is
excellent. Did then and probably still do now.” As of the date of trial, Plaintiff had
not chosen to have a second surgery.
{33} 	Testifying from physical therapy notes, Dr. Harmston indicated that Plaintiff
showed “difficulty in maintaining single leg stance” and also “show[ed] a slight
antalgic gait during his single limb stance.” 	Dr. Harmston testified that, beyond
Plaintiff’s lifting restrictions, having to engage in repetitive squatting, kneeling, and
bending down, which stretch and aggravate muscle, kept Plaintiff from being able to
return to work as a floorhand.
{34} 	In reference to the FCE, Dr. Harmston stated that, given an eight-hour work
day, Mr. Ryan was “saying that essentially [Plaintiff] can stand, walk, sit essentially
normal amounts. These are normal amounts as far as I’m concerned a person would

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be able to do.” That would be “[s]even hours is what he can stand,” and he was “able
to squat, crawl and climb, only occasionally.” Further, Dr. Harmston stated that he
did not disagree with the assessments by Mr. Ryan at all.
{35} 	Concerning the FCE’s recommendation, Dr. Harmston testified that he, “in no
way, ever interpret[s] functional capacities as being finite, that it typically is an end-all
to where a person’s function will be forever.” In Dr. Harmston’s view, FCEs “are
time dependent and typically are time dependent as a person recovers and more time
passes between injury, intervention and the current time that we see continued
progress.” In that regard, Dr. Harmston also stated, “We see continued improvement
in terms of strength and balance, and so forth, and that’s just a matter of muscle
slowly, even if not specifically exercise[d] through therapy, continues to get stronger
and to recover in time, in a young person.” Dr. Harmston thought that
a person in good general health prior to an injury who has . . . an isolated
injury has the ability in this day and age to recover nearly fully . . . with
very little restriction or problems that would persist that would be looked
at as an impairment or problem which would negate [him] from being
able to return to [his] normal activity level.
Plaintiff
{36} 	At trial, approximately one year and ten months after the accident, Plaintiff
testified about his life and condition. He postponed his wedding two years. He had
difficulty engaging in activities he enjoyed with his fiancé, friends, and family,

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including dancing, horseback riding, and volleyball. In addition, his right leg fatigued
easily, and he was no longer able to go hiking, hunting, fishing, or snowboarding with
his friends and family. He was unable to enjoy his former active, outdoor lifestyle and
had become a “couch potato.”
{37} 	Plaintiff testified that he worked as a floorhand, from “8 to 18” hours a day,
depending apparently on the circumstances. In that job, he was required to stand the
whole time and move around. He was required to squat, climb, and engage in “a lot
of heavy lifting and moving.” 	When asked if he had ever tried to go back to a
floorhand position, Plaintiff indicated that he did not intend to look elsewhere for that
position, stating “I’m not going to leave my job where I have benefits and stuff to go
to an unsafe pulling unit where I can actually—if I get hurt I get kicked out for
good[.]” In Plaintiff’s view, based on the FCE results, he was not allowed by Key
Energy to return to work as a floorhand. 	Based on how he felt, Plaintiff did not
believe he could perform the work required of a floorhand. Plaintiff testified at trial
that he asked Key Energy if he could go back to work as a floorhand and that the
company “ha[d] a strict policy that if you don’t pass [the FCE], [they] can’t put you
out on a rig.” Plaintiff conceded that the FCE showed that he was “very strong” and
that lifting was not the problem, but stated that “[t]he problem is the moving around,
the bending, the placement . . . you always have to crouch down or you’re either

21
kneeling to do something, picking something up, or sustaining something. That would
be the hard part. The lifting, I’m a pretty strong guy, . . . I can lift stuff. It’s just the
fatigue.” Plaintiff was taking over-the-counter pain medications such as Ibuprofen,
Advil, and Tylenol on a daily basis.
{38} 	But for the accident, Plaintiff was looking toward moving to the position of
derrickman and then to the position of operator at Key Energy. He thought that he had
a good shot at the operator position, given his ability to speak English, his knowledge
of the job operations, and his experience. 	Operators at Key Energy were making
$21.00 an hour. At the time of trial, Plaintiff was working in Key Energy’s office,
forty-hours per week, making $14.50 an hour with no overtime, receiving about
$30,000 a year, whereas floorhands with his experience were making $16.50 an hour,
had forty hours per week, and were regularly given a significant amount of overtime
hours. 	His income declined from $50,000 to $60,000 annually to approximately
$30,000 annually.
Judith Beard, Occupational Therapist
{39} 	Plaintiff 	relied 	on 	testimony 	of 	Judith 	Beard, 	Defendant’s 	vocational
rehabilitation counselor expert witness, who testified that Plaintiff’s employment
interests included being a tool pusher, a rig operator, a welding inspector, and a
welder. 	She testified to hourly wages for workers in those positions and gave

22
opinions as to Plaintiff’s current and future employability. 	Her opinion was that
Plaintiff had “a wide range of opportunities and he could take a job [from] some of
these like rig operator.” Ms. Beard understood that the usual progression in oil and
gas work is from floorhand to derrickman to relief operator and then rig operator.
Dr. Barry Diskant, Medical Expert
{40} 	As part of its argument on appeal, Defendant discusses the deposition testimony
of its medical expert, Dr. Barry Diskant, who examined Plaintiff just before trial, in
mid-September 2007. 	Based on the examination, Dr. Diskant saw no permanent
muscular injury, thought Plaintiff’s femur was as strong as his other, uninjured femur,
opined that Plaintiff was “presently able to do very heavy work, but probably not
inclined to do so because of the pain,” and further opined that “there was a zero
percent impairment of [Plaintiff’s] right lower extremity” because of the excellent
reduction of the fracture. The doctor thought that Plaintiff would feel a dull ache in
his leg when days were cold or wet, but that this could be handled with over-the-
counter pain relief. Dr. Diskant testified that Plaintiff had no current impairment and
that he was fully capable of returning to his old job.
{41} 	We see no basis on which to consider facts and opinions presented by Dr.
Diskant to support Defendant’s lack of substantial evidence argument. The jury is
free to reject an expert’s opinion. Sanchez v. Molycorp, Inc., 103 N.M. 148, 153, 703

23
P.2d 925, 930 (Ct. App. 1985). 	Further, we consider evidence that supports the
award, we do so in a light most favorable to the award, and we do not consider
conflicting evidence or evidence that supports a contrary view, in determining whether
there exists substantial evidence to support a verdict. See State v. Kersey, 120 N.M.
517, 520, 903 P.2d 828, 831 (1995) (stating that we do not consider the merit of
evidence that may have supported a different result); see also State v. Rojo, 1999-
NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (holding that contrary evidence does
not warrant reversal because the jury is free to reject a party’s version of events);
Chavez, 77 N.M. at 351, 423 P.2d at 38 (stating that the appellate court does not weigh
the evidence and recognizing that conflicting evidence is of no assistance to the
appellant); Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044,
¶ 12, 123 N.M. 329, 940 P.2d 177 (“The question is not whether substantial evidence
exists to support the opposite result, but rather whether such evidence supports the
result reached.”).
B. 	The Proceedings
{42} 	Defendant moved for a directed verdict at the close of Plaintiff’s case, arguing
that Plaintiff had “not proved any future damages,” and there was “no evidence before
the jury that would allow them to find that there [are] future damages that [Plaintiff]
will incur.” Defendant argued that Mr. Ryan did not offer such an opinion and that

24
Dr. Harmston was not going to offer such an opinion. Defendant argued that Plaintiff
was physically qualified to do very heavy work with a recommendation that he do
heavy work and that Mr. Ryan and Dr. Harmston had testified that the FCE was not
static or set in stone. The district court denied the motion and stated that “[i]t becomes
a jury question.” Defendant does not indicate whether it repeated a directed verdict
motion at the close of trial, before the jury was instructed and began deliberations.
{43} 	The jury received instructions which permitted them to find that Plaintiff was
entitled to damages arising in the future. The jury was also permitted to determine
whether the damages arising in the future were “of a continuing nature” and, if so,
“consider how long they will continue.” The jury was further permitted when looking
at loss of future earning ability to consider that some persons work all their lives and
that a person’s earnings may remain the same or may increase in the future. The jury
was given a mortality table showing “the life expectancy of persons aged 26 . . . is
48.9 additional years.” The sufficiency of the evidence is measured against the jury
instructions, because they become the law of the case. State v. Smith, 104 N.M. 729,
730, 726 P.2d 883, 884 (Ct. App. 1986).

25
C. 	Defendant’s Sufficiency of Evidence Argument and Our Holding
{44} 	As we have indicated, Defendant argues that there was no evidence presented
at trial that Plaintiff would suffer permanent pain, aside from a dull ache in his leg
during cold or wet weather. Defendant also argues that there was no evidence at trial
showing that Plaintiff’s residual pain was permanent. Nor, Defendant argues, was
there evidence that the limitations in Plaintiff’s pre-injury work-related activities were
of such permanency that they would prevent Plaintiff from returning to his pre-injury
position. 	Further, Defendant argues, that there was no evidence that Plaintiff’s
recreational activities were permanently limited. Defendant also argues that Plaintiff
left the hospital in a week’s time, started light duty work in three months, and was
capable of performing heavy work by the end of a year’s time. In addition, Defendant
argues that future damages were not proved with reasonable certainty.
{45} 	We do not see in the record and Defendant does not point out in its briefs that
Defendant objected to the future-earnings instructions on the ground that there was
no evidence presented at trial to support a permanent injury or to entitle Plaintiff to
instructions 	allowing 	a 	determination 	of 	damages 	based 	on 	life 	expectancy.
Defendant had a duty to object to these instructions in order to preserve its apparent
position that there was no evidence to support future damages, whether or not it raised
the issue in a motion for a directed verdict. See Rule 1-051(I) NMRA (requiring, for

26
preservation of error, an objection to be made to any instruction given); Curtis v.
Schwartzman Packing Co., 61 N.M. 305, 312, 299 P.2d 776, 781 (1956) (stating that
the admissibility in evidence of life expectancy tables requires a showing of
permanent injury). Defendant has waived any argument that there was no evidence
to support a verdict awarding future damages and is now limited to an argument that
the evidence was insufficient to support or to justify the amount of the verdict
consisting of future damages. Even were there no waiver, we see no basis on which
to conclude that there was insufficient evidence to allow the jury to consider future
pain and suffering and economic damages.
D. 	Defendant’s Lack of Justification-Excessive
Award Arguments and Our Holding
{46} 	Defendant acknowledges that “the valuation of pain and suffering is a difficult,
inexact undertaking at best” and also that “there can be no standard fixed by law for
measuring the value of . . . pain and suffering.” 	Sandoval, 1998-NMCA-085, ¶ 13
(alteration in original) (internal quotation marks and citation omitted). It is not our
duty on appeal to evaluate the value of pain and suffering. Baxter, 113 N.M. at 49,
822 P.2d at 1132. Defendant contends, however, that the jury is nevertheless bound
by certain factors or “guideposts” it must consider, as indicated in 22 Am. Jur. 2d
Damages § 221 (2008), which are the nature and extent of the injuries; the suffering
occasioned by the injuries; the duration or prospective duration of the injuries; and the

27
age, health, habits, and condition of the injured party before the injury as compared
with the party’s condition afterward.
{47} 	To support its argument as to the pain-and-suffering award, Defendant cites
cases from other jurisdictions in which the injuries appear to have been worse than
those of Plaintiff and in which the jury awards were considered excessive. 	See
Thompson v. Amerada Hess Corp., No. CIV.A.96-3265, 1998 WL 274260, at *1, 7-8
(E.D. La. May 26, 1998) (involving a fractured tibia shaft and knee joint, extensive
surgeries with screws and metal plates, and then complications and permanent
injuries, holding that $600,000 award for pain and suffering was excessive, and
granting a new trial if the plaintiff declined a remittitur to $300,000); Orellano v. 29
E. 37th St. Realty Corp., 772 N.Y.S.2d 659, 660 (App. Div. 2004) (holding awards of
$2.5 million and $3 million for past and future pain and suffering, respectively, were
excessive and that “for a comminuted fracture of the tibia and fibula that required
several surgical procedures during a two-month hospital stay and extensive physical
therapy thereafter, and resulted in partial permanent disability to a 47-year-old man,
the sum of $375,000 for each of [the] past and future pain and suffering is a more
appropriate award”); Williams v. Williams, 641 N.Y.S.2d 408, 409 (App. Div. 1996)
(involving a child’s fractured femur where there was evidence of potentially
permanent leg pain holding that $250,000 for pain and suffering was excessive, and

28
granting a new trial if the plaintiff did not accept a remittitur to $100,000). Defendant
also cites a case from another jurisdiction in which the injuries were worse than those
received by Plaintiff and the jury award was lower than that given to Plaintiff and in
which the court indicated that the jury award was appropriate. 	See Policastro v.
Savarese, 567 N.Y.S.2d 784, 788 (App. Div. 1991) (involving a brain injury, a broken
leg resulting in a limp, and a damaged eye muscle resulting in double vision and
holding that $1 million for pain and suffering was appropriate). During oral argument
before this Court, Defendant asserted that the appropriate, if not primary, way of
measuring insufficiency of evidence is to look to these cases involving similar
injuries.
{48} 	Defendant also acknowledges that damages for lost future earnings can be
difficult to precisely measure. See Smith v. FDC Corp., 109 N.M. 514, 520, 787 P.2d
433, 439 (1990) (determining, in an employment discrimination case, that “[a]lthough
future earnings may be speculative and difficult to precisely measure, . . . there was
sufficient evidence for the court to form a basis for its permissible speculation into
[the plaintiff’s] lost earnings”). 	But Defendant points out that, as with pain-and-
suffering damages, an award for such damages cannot be based on surmise,
conjecture, or speculation and must be proved with reasonable certainty. See Sanchez,
99 N.M. at 71-72, 653 P.2d at 902-03; Rael, 94 N.M. at 511, 612 P.2d at 1322.

29
Moreover, Defendant asserts, the evidence must show that Plaintiff’s injury was
permanent or that the injury “would cause [a] disability in performing the usual duties
of his employment in the future.” Garcia v. S. Pac. Co., 79 N.M. 269, 270, 442 P.2d
581, 582 (1968) (concluding that there was not sufficient evidence to justify an award
for a lifelong injury where, although a doctor testified that the plaintiff suffered a
permanent condition, “he did not testify that such a condition would cause any
disability in performing the usual duties of his employment in the future” and there
was “a total lack of proof that any permanent disability or damage resulted”); Curtis,
61 N.M. at 312, 299 P.2d at 781 (noting that the evidence was not sufficient to
establish a permanent injury where there was “not one word of testimony by which
the jury could make any allowance to [the] plaintiff for any life-long injury”).
{49} 	In regard to loss of future earnings, Defendant asserts that Plaintiff’s economic
expert, Dr. Thomas David McKinnon, testified to two different values for lost earning
capacity, based on two different assumptions: (1) An approximate $400,000 valuation
based on the assumption that Plaintiff was unable to return to his pre-injury floorhand
position; and (2) an approximate $600,000 valuation based on the assumption that
Plaintiff remained at his job and would have been promoted about ten years after the
date of the injury to the higher paying position of operator. Defendant then argues
that the evidence was insufficient to support these results because Plaintiff failed to

30
demonstrate with reasonable certainty that his injury was permanent and would
prevent him from working as a floorhand in the future and also because he failed to
demonstrate with reasonable certainty that he would have been promoted to the higher
position of operator at Key Energy had he not been injured. Thus, Defendant argues,
Plaintiff failed to demonstrate the existence of evidence to support either of Dr.
McKinnon’s assumptions with reasonable certainty, and therefore his loss-of-future-
earnings award was not supported by substantial evidence. Finally, Defendant asserts
that the jury could only speculate as to whether Plaintiff would ever have reached the
position of operator at Key Energy because Plaintiff did not present testimony of the
likelihood of any promotions at Key Energy.
{50} 	Plaintiff submits that inferences can be drawn from the evidence presented and
argues that Dr. Harmston’s testimony shows that he has suffered “permanent muscle
damage,” “severely impaired” strength in his right leg, and will continue to experience
pain and discomfort in his leg “when it rains or is cold outside . . . [for] the rest of his
life.” 	Based on a reasonable inference that the results of his FCE were final and
conclusive at the time the FCE was completed, Plaintiff further argues that the extent
of his recovery at the time of the FCE was the full extent of his recovery and that he
would not make any further recovery. Plaintiff also argues that the jury was permitted
to find that he could have reached the position of rig operator earning $85,000 a year,

31
which was greater than Dr. McKinnon’s figure of $61,000, and that Plaintiff’s
earnings in that position would be substantially greater than that proposed by Dr.
McKinnon, thus substantially increasing Plaintiff’s future loss of earnings beyond Dr.
McKinnon’s $600,000 figure. According to Plaintiff, the loss could increase his total
loss to $955,634 if he worked to age sixty-five. Furthermore, Plaintiff argues, the jury
could have figured in Plaintiff’s loss of his own services over his life expectancy.
Plaintiff suggests that the jury could have found, for example, “just five hours of loss
of services per week” over Plaintiff’s life expectancy, with a value of $20 per hour,
and have arrived at a loss of $127,000 subject to reduction to present value; or, the
jury could even have found twice that amount. In its reply brief, Defendant does not
address those arguments. 	Plaintiff also argues in his brief, emphasized in his oral
argument before this Court, that he presented evidence of substantial limitations on
his former, active outdoor lifestyle.
{51} 	We have considered Defendant’s arguments that Plaintiff’s future pain and
suffering was minimal and that the longevity of Plaintiff’s work limitations that would
prevent him from returning to work as a floorhand was questionable, if not
speculative. 	We see no need and choose not to engage in comparisons with the
circumstances in other cases cited by Defendant. To do so, invites unhelpful if not
inappropriate reweighing and comparing of evidence. Following the rules by which

32
we are to examine whether the amount of a jury verdict is justified by the evidence,
we hold that the evidence was sufficient to justify the amount of the verdict and was
not grossly out of proportion to the evidence. This is not an extreme case. And, to the
extent a shocks-the-conscience analysis may be required, nothing about the verdict
shocks our conscience. 	Furthermore, we hold that the court did not abuse its
discretion in denying Defendant’s motion for a new trial or remittitur on the issue of
sufficiency of the evidence. The district court was not, as Defendant argues, required
to determine that the evidence did not justify the amount of the verdict or that the
verdict amount was out of proportion to the evidence or to Plaintiff’s injury.
III. 	Defendant’s Contention That the Verdict Was
Based on Passion or Prejudice
{52} 	Defendant asserts that the damages award was excessive to a point not only that
the evidence inadequacy shocked the conscience but that its excessive nature was
likely, if not assuredly, to have resulted from improper closing argument comments,
leaving room for no reasonable conclusion than that the verdict was unrelated to the
evidence and was a result of passion or prejudice. 	In its amended order denying
Defendant’s motion for a new trial or remittitur, the district court determined, in part,
that there was “no evidence that the verdict was influenced by passion, prejudice,
partiality, sympathy, undue influence or any corrupt cause or motive.”

33
{53} 	Under its passion-or-prejudice contention, in arguing abuse of discretion,
Defendant relies on its brief in chief arguments in support of its first point on appeal
that the verdict was not supported by substantial evidence. 	The purpose for this
reliance is to show that the award could only have resulted from passion or prejudice
generated by Plaintiff’s counsel’s closing argument. Because we have determined that
the evidence justifies the amount of the verdict and that the verdict amount is not
disproportionate to the evidence or injury and does not shock our conscience, we fail
to see how Defendant can successfully maintain any argument grounded in passion
or prejudice as a result of improper closing argument statements. For this reason, we
reject as unfounded Defendant’s second point in its brief in chief based on passion or
prejudice.
{54} 	Nevertheless, in oral argument, Defendant argued that its passion-or-prejudice
point was not dependent upon a determination of whether the evidence was sufficient
to support or justify the amount of the verdict, referring to this Court’s statement in
Gonzales, 89 N.M. at 480, 553 P.2d at 1287, that “[i]f either of the [Chavez] tests [is]
met, the award is excessive.” The question whether Defendant’s passion-or-prejudice
point can survive as an independent basis for relief even after our holding that the
evidence justified the award, was not disproportionate, and did not shock our
conscience, causes us to turn to Defendant’s challenge to the amount of the verdict

34
based on Plaintiff’s counsel’s comments to the jury in closing argument and the
alleged effect of those comments on the integrity of the verdict.
{55} 	Defendant claims that the improper comments (1) referred to matters in
violation of a motion in limine granted by the district court restricting comment,
(2) implored the jury to “send a message” to Defendant, (3) improperly implied that
Plaintiff 	could 	not 	sue 	anyone 	other 	than 	Defendant, 	and 	(4) 	improperly
misrepresented facts adduced at trial. 	Defendant contends that these improper
arguments provide an explanation for the jury having gone outside the evidence to
arrive at a verdict tainted by passion or prejudice. As to each of these issues, while
it may be arguable that one or more of Plaintiff’s counsel’s statements were improper,
Defendant did not adequately preserve the issue.
{56} 	Generally, a motion for a new trial cannot be used to preserve issues not
otherwise raised during the proceedings. See Goodloe v. Bookout, 1999-NMCA-061,
¶ 13, 127 N.M. 327, 980 P.2d 652 (holding, in regard to complaints about improper
restriction of cross-examination, that “[r]aising the matter in their motion for a new
trial came too late; objections must be raised in time for the trial judge to correct the
error to prevent prejudice”). In order to preserve an issue for appeal, Defendant must
have made a timely and specific objection that apprised the district court of the nature
of the claimed error and that allows the district court to make an intelligent ruling

35
thereon. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280;
see also Rule 12-216(A) NMRA (requiring that “it must appear that a ruling or
decision by the district court was fairly invoked” in order to preserve a question for
review); State v. Granillo-Macias, 2008-NMCA-021, ¶ 11, 143 N.M. 455, 176 P.3d
1187 (holding that the defendant’s argument on appeal was not properly preserved
where there was no strict-compliance argument made to the lower court), cert. denied,
2008-NMCERT-002, 143 N.M. 665, 180 P.3d 672; State v. Shirley, 2007-NMCA-137,
¶¶ 31-32, 142 N.M. 765, 170 P.3d 1003 (determining that a defendant’s argument on
appeal pertaining to certain testimony was not properly preserved where the argument
below did not sufficiently alert the district court to the argument raised on appeal to
invoke an intelligent ruling), cert. denied, 2007-NMCERT-010, 143 N.M. 73, 172
P.3d 1285. 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 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., 1998-NMCA-112, ¶ 38.

36
{57} 	In cases involving improper closing argument, as when counsel “go outside the
record . . . we reserve the right in a proper case to reverse the judgment and award a
new trial even if objection be not made.” Griego v. Conwell, 54 N.M. 287, 292, 222
P.2d 606, 609 (1950). However, this rule is to only be applied as a last resort and is
not to be applied “unless we are satisfied that the argument presented to the jury was
so flagrant and glaring in fault and wrongdoing as to leave the bounds of ethical
conduct,” such as going outside the record. Grammer v. Kohlhaas Tank & Equip. Co.,
93 N.M. 685, 693, 604 P.2d 823, 831 (Ct. App. 1979); see Lopez v. Sw. Cmty. Health
Servs., 114 N.M. 2, 8, 833 P.2d 1183, 1189 (Ct. App. 1992) (repeating the statements
in Grammer); see also Murphy v. Int’l Robotics Sys., Inc., 710 So. 2d 587, 591 & n.4
(Fla. Dist. Ct. App. 1998) (stating that the court’s research indicated that other than
in Florida, “no other courts in this country allow improper argument to be raised for
the first time on appeal in civil cases,” but noting that in Griego the New Mexico
Supreme Court “warned that it would do so, but it has never carried out its threat”).
Furthermore, 	while 	counsel 	making 	statements 	in 	closing 	argument 	have 	a
responsibility to refrain from statements of fact outside of the record and to refrain
from asserting reasons for the jury to reach a decision based on circumstances outside
of the record, Enriquez v. Cochran, 1998-NMCA-157, ¶¶ 133, 135, 126 N.M. 196,
967 P.2d 1136, opposing counsel has a responsibility as does the district court “to

37
keep the attorneys in the record while they address the jury.” Griego, 54 N.M. at 291,
222 P.2d at 608.
{58} 	We determine here, as in Griego, that this case is not one that requires us to
hold that the district court abused its discretion in denying Defendant’s motion for a
new trial that asserted the award was tainted by passion or prejudice. 	See
Kestenbaum, 108 N.M. at 29, 766 P.2d at 289 (noting that Griego had recognized that
improper argument could necessitate a new trial notwithstanding a failure to object,
but determining that the complaining party failed to satisfy its “burden to demonstrate
to the trial court that its rights were prejudiced because the argument was improper,”
and noting that in denying a motion for new trial, “the court opined that had [the
party] timely objected[,] a curative instruction could have been conveyed to the jury”).
We believe that if defense counsel had timely and specifically objected and had
requested and received an appropriate curative instruction and/or admonition, the issue
would not now be in this Court. See id. (indicating that “any objections to counsel’s
argument should be timely made, unless they are of such [a] serious nature that a
cautionary instruction would not cure the error”).
{59} 	It is important to note that on the question of jury deliberations, we presume
jurors abide by the court’s instructions. State v. Benally, 2001-NMSC-033, ¶ 21, 131
N.M. 258, 34 P.3d 1134; State v. Smith, 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19

38
P.3d 254; State v. Case, 100 N.M. 714, 719-20, 676 P.2d 241, 246-47 (1984); State
v. Sellers, 117 N.M. 644, 650, 875 P.2d 400, 406 (Ct. App. 1994). In this case, the
jury was given the following instructions.
[Instruction No. 2:] 	The law of this case is contained in these
instructions and it is your duty to follow them. You must consider these
instructions as a whole, not picking out one instruction, or parts thereof,
and disregarding others.
[Instruction No. 14:] . . . . Whether the evidence has proved any
of these elements of damages is for you to determine. Your verdict must
be based upon proof and not upon speculation, guess or conjecture.
Further, sympathy or prejudice for or against a party should not
affect your verdict and is not a proper basis for determining damages.
[Instruction No. 31:] 	You are the sole judges of all disputed
questions of fact in this case. It is your duty to determine the true facts
from the evidence produced here in open court. Your verdict should not
be based on speculation, guess or conjecture.
You are to apply the law, as stated in these instructions, to the
facts as you find them and, in this way, decide the case. 	Neither
sympathy nor prejudice should influence your verdict.
With these instructions in his argument tool kit, defense counsel could have woven
Plaintiff’s counsel’s improper comments not only into emphasis on any curative
instruction, but also into emphasis on the foregoing instructions in an effort to
persuade the jurors to reject Plaintiff’s counsel’s closing argument. 	We turn to
Defendant’s specific complaints about Plaintiff’s counsel’s closing argument.

39
A. 	Comments That Allegedly Violated an Order on a Motion in Limine
{60} 	Defendant’s motion in limine sought to exclude, among other things, evidence
of its policies, manuals, or protocols regarding the appropriate method of bleeding-off
pressure from the tool at issue, and evidence of other accidents involving Defendant
or any other company producing or employing pressure-setting devices. Defendant
asserts that Plaintiff’s counsel intentionally introduced prejudicial evidence through
his closing argument in violation of an order and an agreement to disallow certain
evidence. Defendant complains, too, that the comments had the practical effect of
misleading and confusing the jury because they were not based on the evidence
adduced during trial. Defendant also argues that because the comments occurred in
closing argument, it had no opportunity to present evidence or witnesses to counter
or rebut them.
{61} 	We first discuss the hearing on the motion in limine. Defendant contends in its
brief in chief in one place that the district court granted that part of the motion relating
to policies, manuals, and protocols, and that Plaintiff independently agreed with
Defendant as to that part of the motion relating to accidents. Yet in another place in
its brief in chief Defendant contends that the court granted the motion as to both
issues. 	Plaintiff counters that the parties mutually agreed to certain matters of
evidence, but that there was no court ruling on the motion and no order entered.

40
According to Plaintiff, all he “agreed to do was not mention that [Defendant] had
failed to produce documents concerning its policies, manuals and protocols, mention
that [Defendant] had failed to produce the . . . tool for inspection, or mention similar
accidents involving [Defendant] or anyone else.” 	In its reply brief, Defendant
acknowledges that the court did not expressly state that it was granting its motion and
relies instead on what “the practical import of the discussions between the parties and
[the] court indicated.” 	Defendant concedes that the transcript of the pretrial
conference “is not a model of clarity,” but asserts that it was nevertheless “apparent
from the discussions between the parties and the court that [Defendant’s] motion to
exclude evidence of its policies, manuals, or protocols regarding appropriate methods
to bleed pressure from the tool at issue was granted[] or, at a minimum, acquiesced to
by Plaintiff.” After setting out the discussions, Defendant ends by stating that, based
on the “practical import of the discussions,” its motion “was implicitly granted by the
court,” and Defendant asserts that Plaintiff violated “the agreed-upon motion.”
{62} 	Defendant contends on appeal that during closing argument Plaintiff’s counsel
improperly stated that Defendant lacked a safety policy or procedure for operating the
tool and that Defendant’s failure to have such a policy was reprehensible. Defendant
further contends that Plaintiff’s counsel improperly argued that the jury should
consider the numerous times the tool must have failed in other locations in

41
determining fault and the appropriate measure of damages. However, as to this latter
contention, it is unclear what statements Defendant is referring to and Defendant does
not specify what they are.
{63} 	We will not attempt to unscramble the ambiguous and confusing circumstances
or to pick out the statements as to which Defendant complains but does not set out
with particularity. In our view, Defendant has not presented on appeal a clear and
developed record that permits us to hold that Plaintiff’s counsel’s closing argument
was improper. As well, Defendant does not explain why its counsel could not have
rebutted any statements that might leave a false impression with the jury, or why its
counsel did not raise an objection with the court and seek an effective admonition or
curative instruction. Defendant does not indicate that it objected during the closing
argument to the statements about which it complains. We see no objections in the
record. We think this is an instance in which Defendant should have preserved the
issue in order to raise it on appeal. We therefore do not address it further.
B. 	Asking the Jury to “Send a Message”
{64} 	In his closing argument, Plaintiff’s counsel stated:
You have the power to decide cases, that’s the way our country
works. You have the power to send a message. You have the power to
change things. You can do more by your verdict than just settling the
dispute between a man and a service company. You can actually make
things safer in the oilfield.

42
Defendant argues that these statements were improper and prejudicial because they
urged the jury to reach a verdict for reasons other than the evidence presented at trial.
See State v. Cooper, 2000-NMCA-041, ¶¶ 14-15, 129 N.M. 172, 3 P.3d 149 (stating
that “[p]rosecutorial commentary that urges a jury to convict for reasons other than
the evidence defies the law and undermines the integrity of a verdict”). Defendant
also asserts that the statements did nothing more than appeal to passion and prejudice,
because such statements would be proper, if at all, only to punish a party where
punitive damages were at issue. Defendant further complains that these comments
were made as Plaintiff was arguing how to calculate pain and suffering and other
damages. 	Plaintiff’s response is that whether a “send a message” comment is
improper “depends on the message itself.”
{65} 	Defendant appears to have made some sort of objection to the statements in
question, but the record does not reflect what the objection was or any discussion
among court and counsel about the objection or the statement. Neither the briefs nor
the record reflect a court ruling or any request by Defendant for a curative instruction.
We do not know what Defendant argued. We do not know whether the court agreed
with whatever Defendant’s objection was and whether the parties and court discussed
a curative instruction. It is the duty of the appellant to provide a record adequate to
review the issues on appeal. Williams v. Bd. of County Comm’rs, 1998-NMCA-090,

43
¶ 10, 125 N.M. 445, 963 P.2d 522. 	“Upon a doubtful or deficient record, every
presumption is indulged in favor of the correctness and regularity of the trial court’s
decision, and the appellate court will indulge in reasonable presumptions in support
of the order entered.” Reeves v. Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct.
App. 1988).
{66} 	We choose not to review this issue. See Rule 12-216(A); Varela, 1999-NMSC-
045, ¶ 25; Granillo-Macias, 2008-NMCA-021, ¶ 11; Shirley, 2007-NMCA-137,
¶¶ 31-32; Goodloe, 1999-NMCA-061, ¶ 13. “Objections should be made in time for
the trial court to rule on them and to correct them, where it is possible to correct them
by a cautionary instruction before the jury retires.” Grammer, 93 N.M. at 693, 604
P.2d at 831.
C. 	Implication that Plaintiff Could Not Sue Anyone Else
{67} 	As Plaintiff’s counsel was arguing comparative fault among Defendant, Key
Energy, and Precision, he asked the jury to hold Defendant solely at fault. The full
context of the argument was as follows:
As far as Mr. Brittenham and [Defendant’s] blaming every single person
out there for this, I hope that I did not make a mistake by not suing
everybody else that was out there. I hope that I was correct in filing the
lawsuit against the company that evidence appeared to be solely at fault
because if I had done otherwise, if I had thrown a net over everybody
else that was out there, we would not only have [Defendant] sitting there
but we would have maybe three more defendants and three more lawyers
sitting over there and we’d end up with more lawyers in this courtroom

44
than jurors. 	We just should not sue everybody in sight because
something bad happened. Somebody should not be brought to court and
should not be put on trial unless there’s evidence and substantial
evidence against them. When this happened, everybody out there knew
who was at fault. Everybody out there knew who was responsible. They
knew [whose] tool it was, who was running it and then we get the
lawyers and all our experts, and we hired experts too and things get more
and more complicated. This case should end up the way it started out.
Like what everybody knew when it started out. 	That this was
[Defendant’s] fault.
{68} 	Defendant complains in particular about the statement, “I hope that I did not
make a mistake by not suing everybody else that was out there.” Defendant argues
that “[i]n making this plea, counsel implied, falsely, that the statute of limitations
barred him from suing other parties.” Defendant also argues that the statement was
an improper exhortation “to not find that Plaintiff had made a costly mistake by only
suing [Defendant]—the clear implication from this statement being that Plaintiff had
to recover in this lawsuit, or not at all.” The impropriety here, Defendant argues, is
that Plaintiff was asking the jury to find in Plaintiff’s favor for reasons other than the
evidence presented at trial.
{69} 	We again choose not to address the issue. Defendant does not indicate where
it preserved this issue in the district court by objecting and invoking a court ruling
and, if called for, by seeking a curative instruction or other relief. 	See Rule 12-
216(A); Varela, 1999-NMSC-045, ¶ 25; Granillo-Macias, 2008-NMCA-021, ¶ 11;

45
Shirley, 2007-NMCA-137, ¶¶ 31-32; Goodloe, 1999-NMCA-061, ¶ 13; Grammer, 93
N.M. at 693, 604 P.2d at 831.
D. 	Misrepresentation of Facts
{70} 	Plaintiff’s counsel stated in argument that Plaintiff would have a deep ache in
his leg every time it rains, plus muscle pain because of the extensive muscle damage
and scarring. In addition, counsel argued that Plaintiff had “flunked the FCE and they
wouldn’t let him go back.” Thus, Defendant contends that counsel misrepresented
facts by arguing that Dr. Harmston and Mr. Ryan found that Plaintiff had current,
permanent muscle and/or tissue damage to his leg and that Plaintiff had reached full,
maximum capacity when the FCE was performed. 	Defendant argues that Plaintiff
improperly “insinuated that his condition was static and would not improve.”
{71} 	To show the misrepresentation, Defendant asserts that, while Dr. Harmston
noted that Plaintiff suffered some muscle and/or tissue damage at the time of the
injury, he did not testify that such damage was permanent. Defendant further points
out that Mr. Ryan stated that he did not do any analysis to determine whether Plaintiff
suffered any type of permanent muscle injuries and that he would defer to a physician
to make that determination. Defendant also argues that the testimony of Dr. Harmston
and Mr. Ryan indicated that, in their view, Plaintiff may not have reached full,
maximum capacity when the FCE was performed.

46
{72} 	Once again, Defendant does not indicate where it preserved this issue below by
objecting and obtaining a ruling and, if called for, by seeking a curative instruction or
other relief, and we choose not to address the issue. 	See Rule 12-216(A); Varela,
1999-NMSC-045, ¶ 25; Granillo-Macias, 2008-NMCA-021, ¶ 11; Shirley, 2007-
NMCA-137, ¶¶ 31-32; Goodloe, 1999-NMCA-061, ¶ 13; Grammer, 93 N.M. at 693,
604 P.2d at 831.
IV. 	The Issue of Post-Judgment Interest
{73} 	The district court awarded Plaintiff post-judgment interest at the rate of 15%.
The controlling statute on post-judgment interest, NMSA 1978, § 56-8-4(A)(2)
(2004), states that post-judgment interest is awarded from the date of entry of the
judgment at the rate of 8.75%, unless “the judgment is based on tortious conduct, bad
faith or intentional or willful acts, in which case interest shall be computed at the rate
of fifteen percent.” Defendant contends that it was error to award the higher rate of
interest because there was no evidence of intentional or willful acts, and tortious
conduct can refer only to deliberate tortious conduct and not to mere negligence. This
interpretation, Defendant argues, is reinforced by the text of Section 56-8-4(A)(2),
which places “tortious conduct” in the same category and breath as “bad faith,”
“intentional,” or “willful acts.” Citing William L. Prosser, Handbook on the Law of
Torts § 6, at 29-30 (4th ed. 1971), Defendant notes that under English common law,

47
“torts” did not include mere negligence, but instead involved forcible, direct, and
willful injuries. Defendant argues that the legislative purpose underlying the 15% rate
was to provide for a penalty when a defendant acts culpably. See Pub. Serv. Co. of
N.M. v. Diamond D Constr. Co., 2001-NMCA-082, ¶ 55, 131 N.M. 100, 33 P.3d 651
(observing that the increased rate in Section 56-8-4(A)(2) was an “increased penalty”
warranted “when the facts of a particular case show that the defendant has acted
culpably . . . and therefore may be in need of additional encouragement to timely pay
the judgment debt owed to the plaintiff”). 	Defendant thus urges this Court to
determine that the legislative purpose underlying the elevated interest rate was to
apply to more blameworthy conduct than mere negligence, and to reach any other
conclusion would render application of the statute absurd or unreasonable, as well as
unconstitutional for lack of any rational or principled basis.
{74} 	We review the award of post-judgment interest for abuse of discretion. Pub.
Serv. Co. of N.M., 2001-NMCA-082, ¶ 60. 	A court can abuse its discretion by
misapprehending or misapplying the law. 	N.M. Right to Choose/NARAL, 1999-
NMSC-028, ¶ 7; Klinksiek, 2005-NMCA-008, ¶ 4; Elinski, 1997-NMCA-117, ¶ 8.
{75} 	While Defendant makes an arguable point, we must look to the plain meaning
of the term. 	“Tortious” stems from “tort,” and negligence is considered a tort in

48
American jurisprudence. Note, for example, our statement in Public Service Co. of
New Mexico, 2001-NMCA-082, ¶ 58:
“Tortious conduct” has been defined as an act or omission that
subjects an individual to liability under the principles of tort law. In tort
law, conduct may be actionable whether the actor intends harm or not.
Nonetheless, the most common of the tort causes of action require a
finding that a defendant acted negligently, recklessly, or intentionally.
(Citations omitted.)
{76} 	Our long-arm statute, NMSA 1978, § 38-1-16(A)(3) (1971), states that a person
submits himself to the jurisdiction of the court as to “any cause of action arising from
. . . the commission of a tortious act within this state.” There is no question that a
cause of action arising from commission of a negligent act constitutes the commission
of a tortious act under this statute. 	See, e.g., Roberts v. Piper Aircraft Corp., 100
N.M. 363, 366, 670 P.2d 974, 977 (Ct. App. 1983) (holding that “when negligent acts
occur outside New Mexico which cause injury within New Mexico, a ‘tortious act’
has been committed within this state”). We are further guided by usage in reliable
sources as to the meaning of words. For example, we read in Restatement (First) of
Torts § 6 (2008) that “[t]he word ‘tortious’ is used throughout the Restatement of this
Subject to denote the fact that conduct whether of act or omission is of such a
character as to subject the actor to liability under the principles of the law of Torts.”
Under its first comment, the Restatement clarifies that

49
The word “tortious” . . . is appropriate to describe not only an act which
is intended to cause an invasion of an interest legally protected against
intentional invasion or conduct which is negligent as creating an
unreasonable risk of invasion of such an interest, but also conduct which
is carried on at the risk that the actor shall be subject to liability for harm
caused thereby, although no such harm is intended and the harm cannot
be prevented by any precautions or care which it is practicable to require.
Id., cmt. a. We note that Restatement (Second) of Torts § 6 (2008) repeats what was
stated in the prior Restatement.
{77} 	Dictionary definitions also indicate that “tortious” includes negligent conduct.
Webster’s defines “tortious” as “implying or involving” a tort and defines “tort” as “a
wrongful act other than a breach of contract for which relief may be obtained in the
form of damages or an injunction.” Merriam-Webster’s Collegiate Dictionary 1245,
1246 (10th ed. 1996). Black’s defines “tortious” as “[c]onstituting a tort; wrongful”
and defines “tort” as “[a] civil wrong.” Black’s Law Dictionary 1526, 1527 (8th ed.
2004). Under “tort,” Black’s lists several types of tort, including “negligent tort.” Id.
Black’s defines “negligence” as a “tort” grounded in “[t]he failure to exercise the
standard of care that a reasonably prudent person would have exercised in a similar
situation.” 	Id. at 1061. 	These definitions do not indicate that either “tort” or
“tortious” means only intentional or willful conduct or implies bad faith.
{78} 	Defendant’s arguments make sense given the placement of Section 56-8-
4(A)(2) in Chapter 56 entitled “Commercial Instruments and Transactions” and

50
Article 8 entitled “Money, Interest and Usury,” and also given the inclusion of
“tortious conduct,” along with “bad faith” and “intentional or willful acts.”
Nevertheless, we cannot escape the fact that the Legislature’s use of the word
“tortious” in the interest statute must be considered in plain and customary usage to
mean an act that constitutes a tort. Negligence comes within that meaning, as it is
considered a tort. We therefore are not prepared to interpret the statute as Defendant
asks us to do. We think that it is up to the Legislature to revisit whether it intends to
penalize negligence with the 15% post-judgment rate. 	We must presume that in
amending Section 56-8-4(A) in 1983 with a 15% interest rate, the Legislature was
aware of the use of the word “tortious” as including the word “negligence.” Compare
1980 N.M. Laws, ch. 68, § 2, with 1983 N.M. Laws, ch. 254, § 2. We hold that the
district court did not err in awarding interest at 15%.
CONCLUSION
{79} 	We hold that the district court did not abuse its discretion in denying
Defendant’s motion for a new trial or remittitur. We affirm the verdict. We further
hold that the district court did not err in awarding post-judgment interest at 15%.
{80} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

CELIA FOY CASTILLO, Judge

RODERICK T. KENNEDY, J udge

o1