August 4, 2016 – Joseph Lee Christopherson v. St. Vincent Hospital, No. 33,784

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	August 4, 2016
NO. 33,784
JOSEPH LEE CHRISTOPHERSON, as Personal
Representative of the Estate of MERCEDES
LOUISE CHRISTOPHERSON, and JOSEPH LEE
CHRISTOPHERSON, individually,
Plaintiffs-Appellees,
v.
ST. VINCENT HOSPITAL, a New Mexico Non-
Profit Corporation d/b/a CHRISTUS ST. VINCENT
REGIONAL MEDICAL CENTER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge
Law Office of Jane B. Yohalem
Jane B. Yohalem
Santa Fe, NM
Katherine W. Hall PC
Katherine W. Hall
Santa Fe, NM

The Zamora Law Firm, LLC
D. Diego Zamora
Santa Fe, NM
for Appellees
Modrall, Sperling, Roehl, Harris & Sisk
Tim L. Fields
Emil J. Kiehne
Susan M. Bisong
Elizabeth A. Martinez
Albuquerque, NM
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Joseph Lee Christopherson, individually and as personal representative of the
estate of his daughter, Mercedes Louise Christopherson, filed a complaint for medical
negligence leading to Mercedes Christopherson’s death in 2008. A jury found St.
Vincent Hospital negligent, but hung on the issue of causation. A second trial, limited
to causation, resulted in a verdict in favor of St. Vincent Hospital. The district court
ordered a third trial on causation based on defense counsel’s misconduct during the
second trial. The final trial ended in a $2.25 million verdict against St. Vincent
Hospital. St. Vincent Hospital appeals.
I. 	BACKGROUND
{2} 	In November 2008 twenty-year-old Mercedes Christopherson (Mercedes) was
hospitalized at Presbyterian Hospital in Albuquerque for acute pain in her abdomen.
After approximately one week, she was discharged on November 21, 2008, and
returned to Santa Fe, where she lived. However, on November 25, 2008, Mercedes
was still in pain and went to the emergency room at St. Vincent Hospital where she
was admitted.
{3} 	At St. Vincent Hospital, Mercedes was treated for pancreatitis and several
possible types of infection, including an intra-abdominal infection. After a few days

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Mercedes started to improve, but then, on December 6, developed a fever, increased
pulse, and hypoxia (insufficient oxygen). Between December 6 and December 8,
Mercedes’ pain medication and antibiotics were adjusted, more tests were performed
to identify whether she had one or more types of infection, and she was given oxygen
to address the hypoxia.
{4} 	Mercedes was discharged from St. Vincent Hospital on December 8, 2008. At
the time of discharge, she had a temperature of 100.9 and slightly elevated heart rate
of 107. Mercedes was advised not to drink alcohol because of possible interaction
with the pain medication she was taking and to contact the hospital if she had a
temperature over 101 degrees, shortness of breath, nausea, vomiting, or sudden severe
weakness. She spent the evening with her girlfriend, Adrianna Bustos, and the Bustos
family. According to family members, she spent “a quiet evening, eating a small meal
and then going to sleep.” At ten o’clock the next morning, Mrs. Bustos, Adrianna’s
mother, checked on Mercedes and found that she was not breathing and that there was
drool or bile around her mouth. Mrs. Bustos called 911 and another person in the
house began CPR. Emergency medical technicians arrived and took Mercedes to the
hospital, where she was put on life support. She died the next day.
{5} 	In December 2009 Mercedes’ father, Plaintiff Joseph Lee Christopherson, filed
suit against St. Vincent Hospital for medical negligence. An eleven-day jury trial was

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held. The jury found that St. Vincent Hospital was negligent, but hung on the question
of whether St. Vincent Hospital’s negligence caused Mercedes’ death. The district
court ordered a partial retrial on the issue of causation only.
{6} 	The second trial—limited to causation—started in late July 2012. After a five-
day trial, the jury found that St. Vincent Hospital’s negligence was not the cause of
Mercedes’ death. Plaintiff moved for a new trial on the ground that “[t]he jury verdict
was induced by misconduct of defense counsel consisting [of] statements which were
intentional, irrelevant, inadmissible, unethical[,] and prejudicial.” The district court
granted the motion for a new trial.
{7} 	A third partial trial was held in December 2013. Before trial, St. Vincent
Hospital moved for a full retrial of both negligence and causation, on the ground that,
in order to “render a proper verdict on causation, the [t]hird [j]ury needs to know the
grounds on which the [f]irst [j]ury found St. Vincent [Hospital] to be negligent, but
that is not possible.” The district court denied the motion, stating that “the issues of
negligence, causation[,] and damages in this case are separate and distinct as defined
by Buffett v. Vargas, 1996-NMSC-[012], 121 N.M. 507, 914 P.2d 1004.” At the
conclusion of the third trial, the jury found that St. Vincent Hospital’s negligence was
the cause of Mercedes’ death and awarded $2,250,000 in compensatory damages. St.
Vincent Hospital appealed.

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II. 	DISCUSSION
{8} 	St. Vincent Hospital’s appeal presents three questions. First, whether the district
court erred in limiting the second or third trials to causation only. Second, whether the
district court erred in ordering a third partial trial based on defense counsel’s conduct
in the second trial. Third, whether a new, full retrial is necessary because the district
court erred by excluding expert testimony concerning the role of Xanax and marijuana
in Mercedes’ death. We address these arguments in turn.
A. 	The District Court Did Not Improperly Limit Retrial to Causation
{9} 	“The grant or denial of a new trial is a matter resting within the sound discretion
of the trial court, and the reviewing court will not reverse absent a manifest abuse of
that discretion.” Martinez v. Ponderosa Prods., Inc., 1988-NMCA-115, ¶ 4, 108 N.M.
385, 772 P.2d 1308. Under Rule 1-059(A) NMRA, the district court may order a new
trial on “all or part of the issues in an action in which there has been a trial by jury, for
any of the reasons for which new trials have heretofore been granted.” Cf. Rule 1-
042(B) NMRA (“The court . . . may order a separate trial of any claim, . . . or of any
separate issue or of any number of claims, . . . or issues, always preserving the right
of trial by jury given to any party as a constitutional right.”).
{10} 	Generally speaking, whether a partial trial is appropriate depends on whether
the issue is “entirely separate and distinct from” the other issues already decided and

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whether “such single issue can be determined without reference to other issues and
without prejudice to either party.” Sanchez v. Dale Bellamah Homes of N.M., Inc.,
1966-NMSC-040, ¶ 12, 76 N.M. 526, 417 P.2d 25; see Buffett, 1996-NMSC-012, ¶ 32
(stating that a partial retrial as to a single party is appropriate when “there is a clear
showing that the issues in the case are so distinct and separable that a party may be
excluded without prejudice” and that “[t]his test is the same as New Mexico’s test for
determining whether a partial retrial is appropriate as to some issues but not others”
(internal quotation marks and citation omitted)). The test derives from a United States
Supreme Court decision, Gasoline Products Co. v. Champlin Refining Co., which held
that “a partial retrial may not properly be resorted to unless it clearly appears that the
issue to be retried is so distinct and separable from the others that a trial of it alone
may be had without injustice.” 283 U.S. 494, 500 (1931). Rule 59 of the Federal Rules
of Civil Procedure, on which our Rule 1-059 is based, was “written in the light of the
Gasoline Products case and of state practices allowing a partial new trial.” The Late
Charles Alan Wright, et al., Partial New Trial, 11 Fed. Prac. & Proc. Civ. § 2814 (3d
ed. 2016); Martinez v. Friede, 2004-NMSC-006, ¶ 12, 135 N.M. 171, 86 P.3d 596
(stating that “our Rule 1-059 is substantially the same as its federal counterpart with
one . . . exception,” which has since been superseded by rule), superseded by rule on

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other grounds as stated in State v. Moreland, 2008-NMSC-031, ¶ 11, 144 N.M. 192,
185 P.3d 363.
{11} 	St. Vincent Hospital’s argument is that “a full retrial was required . . . because
the question of causation was not ‘distinct and separable’ from that of negligence.”
Negligence and causation are not distinct, it argues, because there was no way for the
second or third jury to know which conduct the first jury found negligent. In the first
trial, the jury was instructed that “[t]o establish medical negligence on the part
of . . . St. Vincent Hospital, . . . Plaintiff has the burden of proving that St. Vincent
Hospital . . . failed to use the skill and care required in at least one of [seven] ways[.]”
The “seven ways” were:
[(1)] 	By failing to properly communicate observations and concerns
about 	Mercedes[’] 	. 	. 	. 	condition 	among 	Dr. 	Kovnat, 	Dr.
Palestine[,] Nurse Gallagher or other nurses; or
[(2)] 	By failing to rule out intra-abdominal infection as the cause of
Mercedes[’] . . . blood stream infection; or
[(3)] 	By inadequately treating Mercedes[’] . . . blood stream infection;
or
[(4)] 	By failing to assess and evaluate Mercedes[’] . . . hypoxia before
discharging her without supplemental oxygen; or
[(5)] 	By failing to assess and evaluate Mercedes . . . for oversedation
before discharging her; or

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[(6)] 	By failing to obtain pertinent medical information, including the
December 8, 2008[,] blood culture results, prior to discharging
Mercedes . . . home on December 8, 2008; or
[(7)] 	By discharging Mercedes . . . home on December 8, 2008, without
ongoing antibiotics.
{12} 	The verdict form, however, did not require the jurors to indicate which conduct
was the basis for negligence. Instead, it merely asked whether St. Vincent Hospital
was negligent. St. Vincent Hospital concludes that because the finding of negligence
could have been based on any one of the seven identified ways, and the later juries
could not know which conduct was found negligent, it was impossible for them to tie
the negligence finding to the cause of Mercedes’ death.
{13} 	St. Vincent Hospital’s argument has some intuitive appeal. Indeed, a number
of courts in other jurisdictions have concluded under similar facts that a partial retrial
on causation only is inappropriate. We begin by outlining the relevant cases. Because
we conclude that none of the cases cited by the parties fully resolves the issue here,
we examine principles governing appellate review of jury verdicts. We conclude that
the district court did not err in ordering a partial retrial on causation under the facts
of this case.
Case Law on Partial Trials
{14} 	No New Mexico case directly addresses a partial retrial on causation. In Scott
v. McWood Corp., our Supreme Court considered whether a new trial on contributory

8
negligence was appropriate. 1971-NMSC-068, ¶ 10, 82 N.M. 776, 487 P.2d 478. In
an earlier appeal, the Supreme Court had remanded to the district court for a new trial
on the plaintiffs’ claim, and the district court limited the retrial to the issue of
contributory negligence. Id. ¶¶ 1, 10; see Scott v. Murphy Corp., 1968-NMSC-185,
¶ 14, 79 N.M. 697, 448 P.2d 803. After the jury found in favor of the plaintiffs, the
district court ruled that the plaintiffs were contributorily negligent as a matter of law
and therefore barred from recovery, and entered a judgment for McWood Corporation
notwithstanding the jury’s verdict. McWood Corp., 1971-NMSC-068, ¶¶ 2-3. The
plaintiffs appealed the judgment notwithstanding the verdict and the defendant cross-
appealed, arguing that retrial only on the appellant’s contributory negligence was
error. Id. The Court held that contributory negligence is a factual question that should
have been submitted to the jury, reversed the judgment on that ground, and ordered
a new trial on that issue only. Id. ¶¶ 8, 14. In addition, it rejected the defendant’s
arguments and held that the defendant’s “primary negligence had been determined by
properly submitted interrogatories” and hence the district court did not err in ordering
that its negligence did not need to be retried. Id. ¶ 10.
{15} 	Although it did not use this language, we conclude that the Court determined
that the issue of the plaintiffs’ contributory negligence was distinct and separable from
the defendant’s negligence. Plaintiff argues that Scott supports a partial retrial here.

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But 	Scott’s holding is of limited use here because it addressed contributory
negligence. See NMSA 1978, § 41-3A-1 (1987) (adopting comparative negligence
doctrine except in limited circumstances). Under the contributory negligence doctrine,
even the tiniest bit of contributory negligence on the plaintiffs’ part would have
prevented the plaintiffs’ recovery. Commercial Union Assurance Cos. v. W. Farm
Bureau Ins. Cos., 1979-NMSC-082, ¶ 4, 93 N.M. 507, 601 P.2d 1203 (“[C]ontributory
negligence [is] a bar to recovery in a tort action.”). As such, the question of whether
the plaintiffs were contributorily negligent did not involve comparing the negligence
of the parties and apportioning fault, nor did it involve assessing the causal
relationship between the defendant’s negligence and the plaintiffs’ injury.
{16} 	Sanchez v. Wiley too is unhelpful. 1997-NMCA-105, 124 N.M. 47, 946 P.2d
650. In that case, this Court approved a partial retrial on punitive damages because
“[t]he focus of the retrial would be different from the focus of the trial on
compensatory damages, at which the jury decided the issues of injury, loss, and
allocation of fault. At a trial on punitive damages, the emphasis would be on [the
d]efendants’ behavior and whether that behavior should be punished.” Id. ¶ 10. The
analysis there depended on whether the defendant would be prejudiced by a partial
retrial. The Court stated, “Prejudice does not result merely because there may be
overlap in the evidence, particularly when, as in this case, there is no possibility that

10
the error alleged on appeal (failing to allow the punitive damages issue to go to the
jury) could have affected the compensatory damages award.” Id.
{17} 	We turn to cases from other jurisdictions. In Conklin v. Hannoch Weisman, 678
A.2d 1060 (N.J. 1996), the New Jersey Supreme Court examined whether retrial on
both negligence and causation was required where the first jury had found the lawyer-
defendants negligent in advising their clients. Id. at 1067. Framing the question as
“whether the first jury’s finding that [the] defendants had failed properly to inform
[the] plaintiffs of the risks of subordination should be binding on a jury at retrial[,]”
the court stated that “[a]lthough the jury’s finding of negligence . . . very well may
have been unaffected by error, [it had] no way of knowing precisely what conduct the
jury based that finding on” and therefore “[could not] say that the jury’s finding of
negligence was entirely distinct and separable from the issue of proximate cause.” Id.
The jury verdict form, similar to that here, merely asked the first jury whether the
defendants were negligent “in representing the [plaintiffs] in connection with
explaining subordination and the risks associated with subordination[.]” Id. at 1064.
The court concluded that this verdict form created problems for retrial, stating “[t]he
concrete question is what precisely were the jury’s factual findings and how would
those findings relate to the issues of causation.” Id. at 1068.
For example, the attorneys’ negligence may have consisted in giving no
explanation 	of 	subordination 	at 	all 	(plaintiffs’ 	basic 	theory), 	an

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incomplete explanation (one witness said that [one attorney] told one of
the plaintiffs that subordination means that the bank gets paid first), or
an unartful explanation couched in legal jargon rather than in the plain
language necessary to impart its meaning to lay clients (a theory of one
of the experts). How then might the court at retrial pose the issue to the
jury? We foresee too many problems of repeat error if the terse language
of the jury findings is translated into background circumstances that may
or may not have been what the first jury intended to convey.
Id.; see Henebema v. S. Jersey Transp. Auth., 99 A.3d 336, 343 (N.J. 2014) (analyzing
Conklin and stating that Conklin “addressed circumstances where there existed the real
potential that jury confusion could undermine confidence in a second jury’s verdict
on causation if that second jury did not understand the basis for the first jury’s
findings on negligence”). The Conklin court also stated that because “[a] jury verdict
in a civil tort claim ordinarily consists of two components, a finding of negligent
conduct and a finding of damages proximately caused by that conduct[, n]egligence,
. . . is usually inextricably intertwined with the concept of proximate cause.” 678 A.2d
at 1067.
{18} 	A similar case is Carbis Sales, Inc. v. Eisenberg, 935 A.2d 1236, 1250-51 (N.J.
Super. Ct. App. Div. 2007), in which the New Jersey Superior Court ordered retrial
on all issues where the evidence supported two different theories of legal malpractice
but the first jury verdict did not specify the basis on which the jury found malpractice.
It stated,

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[T]he only way for a [second] jury on remand to determine what losses
were proximately caused by which facets of [the attorney’s] malpractice
is for them to hear what that malpractice consisted of. That is, they
would have to essentially hear the entire case on liability. Accordingly,
the remedy on plaintiffs’ cross-appeal is a remand for a new trial as to all
issues and all parties.
Id. at 1251; but see Tindal v. Smith, 690 A.2d 674, 682 (N.J. Super. Ct. App. Div.
1997) (holding that negligence and proximate cause could be tried separately because,
“based on the evidence, the two issues were entirely distinct and separate” and “[i]n
his instructions to the jury, the judge charged on negligence separately from proximate
cause”).
{19} 	In California, a plaintiff sued a city for sexual harassment and retaliation. Lewis
v. City of Benicia, 169 Cal. Rptr. 3d 794, 799 (Ct. App. 2014). As to the retaliation
claim, a jury found that “[the plaintiff’s] participation in protected activity was a
motivating reason for [the c]ity’s adverse actions, but . . . [the c]ity’s conduct was not
a substantial factor in causing harm to [the plaintiff].” Id. at 800. The verdict form
echoed the elements of a retaliatory discharge claim. Id. at 808. The California Court
of Appeals held that the district court improperly excluded evidence at trial related to
retaliation and remanded for retrial. Id. at 812. The plaintiff argued for “a limited
retrial on the causation-of-harm element, and [leaving] intact the jury’s findings in
[the plaintiff’s] favor on other elements of the retaliation cause of action.” Id. The
court rejected this argument on two bases. First, it held, based on California law, that

13
courts are not permitted to “enter a partial special verdict that fails to dispose of all
elements necessary to establish liability on a single cause of action.” Id. at 813; see
Cal. Civ. Proc. Code § 624 (1872) (stating that on a special verdict form “conclusions
of fact must be so presented as that nothing shall remain to the [c]ourt but to draw
from them conclusions of law”). It concluded, “[a] reversal of just the jury’s adverse
finding on the causation-of-harm element (the relief apparently sought by [the
plaintiff]) would leave a partial special verdict consisting of the jury’s responses on
only some elements of the retaliation cause of action and would not establish [the
c]ity’s liability on that claim.” Lewis, 169 Cal. Rptr. 3d at 813.
{20} 	More relevant to our purpose, the court held that “a partial retrial on the
causation-of-harm element would cause confusion and uncertainty and would be
prejudicial to [the c]ity” because
[a] second jury would have to determine whether [the c]ity’s retaliatory
acts caused harm to [the plaintiff], but the second jury would not know
which of [the c]ity’s alleged acts (e.g., termination of the plainitiff’s
employment at the end of his paid internship, false accusations of
misconduct after he returned as a volunteer, interference with his
workers’ compensation claim) the first jury determined were retaliatory.
Id. It concluded that “[a] full retrial on the retaliation claim is necessary.” Id.
{21} 	Finally, in Bohack Corp. v. Iowa Beef Processors, Inc., 715 F.2d 703, 709 (2d
Cir. 1983), the Second Circuit Court of Appeals held that the district court properly
ordered a new trial on all issues after a jury found violation of a statute (“Robinson-

14
Patman”) but hung on the issue of causation. There, the complaint alleged “price
differentials” related to a number of products, but it was not clear which products were
the basis for the first jury’s finding that the price fixing statute had been violated. Id.
The court stated,
The first jury had not been asked to, nor did it, specify the products as to
which it found [the] defendants had violated the Robinson-Patman Act.
The second jury thus could hardly have fathomed the issues of causation
and injury to [the plaintiff] without considering the extent of the
violation. Hence the court properly concluded that the second trial
should include all Robinson-Patman issues.
Id.
{22} 	None of these cases satisfactorily address the issues posed by the arguments
here. Several merely state that a partial trial on causation is improper because
causation is intertwined with negligence, with little explanation, and with little
deference to the trial court’s decision, in spite of lip service to the abuse of discretion
standard of review. Other holdings rest on the second jury’s lack of knowledge about
the precise basis of the first jury’s verdict but include no discussion of other principles
governing treatment of jury verdicts. For instance, even though California adheres to
the “general verdict rule,” discussed further below, it does not explain in Lewis how
that rule operates in the context of partial retrials. See McCloud v. Roy Riegels Chems.,
97 Cal. Rptr. 910, 915 (Ct. App. 1971) (discussing the general verdict rule in
California). Similarly, it is not clear in the cases described above whether those

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jurisdictions require juries to agree on the factual underpinnings of a cause of action
or merely on its elements, and how the approach to review of jury verdicts might
impact the propriety of partial retrials. Because we conclude that these principles are
integral to review of St. Vincent Hospital’s arguments, we discuss them next.
The General Verdict Rule and Jury Unanimity
{23} 	We consider the first verdict here a general verdict in spite of its label as a
“special verdict.” Although labeled “special,” the questions were very general. First,
the jury was asked, “Were either [St. Vincent Hospital and/or Dr. Palestine]
negligent?” The jury was then asked whether St. Vincent Hospital’s negligence was
the cause of Mercedes’ injury. In Bustos v. Hyundai Motor Co., a case dealing with
liability for an automobile accident death, this Court held that a verdict similar to this
was a general verdict. 2010-NMCA-090, ¶ 47, 149 N.M. 1, 243 P.3d 440.
The jury . . . was not requested to find whether the roof or doors
specifically were defective or how [the d]efendants were specifically
negligent. The questions asked were general: “Was there a defect in the
2002 Hyundai Accent?” “Did Hyundai breach the implied warranty of
merchantability?” “Was Hyundai negligent?” In that regard, the special
verdict form in this case amounted to a general verdict.
Id.
{24} 	Consistent with Bustos, we treat the verdict here as a general verdict. See
Dessauer v. Mem’l Gen. Hosp., 1981-NMCA-051, ¶ 16, 96 N.M. 92, 628 P.2d 337
(holding that a verdict form that “was determinative of the right of the [plaintiffs] to

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recover damages from the [defendant] as an alleged tortfeasor, that answer is the
equivalent of, and is to be given effect as, a general verdict” despite not being labeled
as such).
{25} 	Under the “general verdict rule,” “[a] general verdict may be affirmed under
any theory supported by evidence unless an erroneous jury instruction was given.”
Bustos, 2010-NMCA-090, ¶ 48. In Bustos, for example, the defendant argued that an
issue of a defective door latch should not have been presented to the jury because it
was not supported by substantial evidence. Id. ¶ 47. This Court held that, even if it
assumed there was error in presenting this argument to the jury, the verdict could
nevertheless be affirmed based on theories that were supported by the evidence.
In this situation, we must assume the jury accepted the theory argued by
counsel that was supported by substantial evidence. Assuming there was
insufficient evidence of causation between any door-latch defect and [the
decedent]’s injuries, we assume the jury did not rely on the door for its
finding of product defect and negligence.
Id. ¶ 49; cf. Curry v. Burns, 626 A.2d 719, 721 (Conn. 1993) (stating that the “general
verdict rule provides that, if a jury renders a general verdict for one party, and no party
requests interrogatories, an appellate court will presume that the jury found every
issue in favor of the prevailing party”); 89 C.J.S. Trial § 1114 (2016) (“The so-called
‘general verdict rule’ provides that if a jury renders a general verdict for one party,

17
and no party requests interrogatories, an appellate court will presume that the jury
found every issue in favor of the prevailing party.”).
{26} 	Applying the general verdict rule here would permit us to affirm the first jury’s
verdict as to negligence on any of the seven theories advanced by Plaintiff so long as
they are supported by the evidence. Importantly, St. Vincent Hospital does not
challenge any of the seven theories on sufficiency of the evidence grounds nor assert
any error in the jury instructions in the first trial. In the absence of such a challenge,
we assume all seven theories are supported by the evidence. Rule 12-213(A)(4)
NMRA (“A contention that a verdict, judgment or finding of fact is not supported by
substantial evidence shall be deemed waived unless the argument [in the brief in chief]
identifies with particularity the fact or facts that are not supported by substantial
evidence[.]”).
{27} 	St. Vincent Hospital does, however, make the finer point that there is no way
to know whether at least ten jurors found it negligent in precisely the same way. In
other words, it maintains that some jurors may have found it negligent as to one of the
seven theories while different jurors found it negligent on a different theory.
Consequently, there is no way to know if at least ten jurors agreed on the basis for the
verdict. Hence, it argues, it would be error for subsequent juries to assume negligence
was found in “at least one” of the seven theories.

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{28} 	We do not agree that unanimity among the first jury members on the factual
basis for a finding of negligence is a prerequisite to validity of the verdict or later
juries’ reliance on that verdict. In the criminal arena, “where alternative theories of
guilt are put forth under a single charge, jury unanimity is required only as to the
verdict, not to any particular theory of guilt.” State v. Godoy, 2012-NMCA-084, ¶ 6,
284 P.3d 410; see State v. Salazar, 1997-NMSC-044, ¶ 32, 123 N.M. 778, 945 P.2d
996 (stating that “a jury’s general verdict will not be disturbed in such a case where
substantial evidence exists in the record supporting at least one of the theories of the
crime presented to the jury”). Other courts have applied this rule in the civil context.
Addressing a question similar to that here, the California Court of Appeal observed,
“Generally, [the] criminal law system places greater burdens on the plaintiff or
prosecutor to prove a case against a defendant than does our civil law system.” Stoner
v. Williams, 54 Cal. Rptr. 2d 243, 251 (Ct. App. 1996). As examples, the Stoner court
noted that the burden of proof is greater in criminal trials, a criminal verdict must be
unanimous, and “the types of evidence admissible are generally more restricted in
criminal cases than in civil cases.” Id. Stating that “the question of jury agreement in
civil cases should . . . not be more onerous on the civil plaintiff than on the criminal
prosecutor[,]” id. at 251-52, it concluded that, just like in criminal cases, “jurors [in
civil cases] need not agree from among a number of alternative acts which act is

19
proved, so long as the jurors agree that each element of the cause of action is proved.”
Id. at 252.
{29} 	The Kansas Supreme Court took a more direct route to the same effect. In
Cleveland v. Wong, the jury was instructed on six different alleged bases for
negligence. 701 P.2d 1301, 1307 (Kan. 1985). After the jury found in favor of the
plaintiff, the defendant appealed, arguing that the instructions “permitted the jurors
to agree that the defendant was negligent without agreeing upon a specific act of
negligence.” Id. The court disagreed that the jurors were incorrectly charged. It stated:
In a surgical malpractice case, if half of the jurors believe that the
surgeon left a sponge in the incision and the other half believe that he left
gauze rather than a sponge in the patient, and assuming that the evidence
would support either finding and that the surgeon’s omission caused the
damage, should recovery be denied? We think not.
Id. at 1308.
{30} 	The Kansas Supreme Court concluded that “[i]f a jury finds a defendant
negligent in one or more of the claims of negligence upon which there is competent
substantial evidence, and further finds that the plaintiff sustained damages as a direct
result of the defendant’s negligence, that is sufficient” and that “[u]nanimity upon the
specific negligent act or omission is not required.” Id. at 1308-09; see Elizabeth A.
Larsen, Comment, Specificity and Juror Agreement in Civil Cases, 69 U. Chi. L. Rev.

20
379, 388-92 (2002) (discussing juror agreement generally as well as Stoner and
Cleveland).
{31} 	We agree with the reasoning in these cases. Given that our criminal case law
is clear that a jury need not agree on the theory underlying guilt or the factual basis
of a single charge, we agree with the Stoner court that the principle readily applies in
civil cases as well, where the burden of proof is lower and the unanimity requirements
less stringent. Compare, e.g., Rule 5-611(A) NMRA (requiring a unanimous verdict
in criminal cases), with Rule 1-038(G) NMRA (requiring that ten out of twelve jurors
agree in civil cases).
{32} 	The leading case addressing jury unanimity in civil cases in New Mexico is
Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521. In that case, this
Court addressed a related question: “Must the same ten jurors agree on each material
issue that supports a verdict or may agreement of any ten jurors on any issue constitute
a finding as to that issue?” Id. ¶ 4. There, eleven jurors found only the defendant
negligent, but one found that both defendant and plaintiff were negligent. Id. ¶ 2. (At
that time, a finding of contributory negligence would have barred recovery entirely.
Id. ¶ 19.) Nevertheless, the twelfth juror proceeded to consider and vote on the issue
of damages. Id. ¶ 2. Two jurors who had found negligence disagreed on the measure
of damages. Id. On appeal, the defendant argued that the verdict against her was

21
invalid for two reasons. First, because the juror who voted against negligence should
not have considered damages, and second, because the exclusion of that juror’s vote
coupled with the two votes against damages meant that fewer than ten jurors had
agreed on the amount of damages. Id. ¶¶ 1, 4. Construing what is now Rule 1-038(G),
the Court disagreed that the twelfth juror’s vote on damages was error and held that
“a verdict must be received by the court when at least ten jurors, not necessarily the
same ten, agree to each material finding supporting that verdict provided, however,
that none of the jurors . . . is guilty of irreconcilable inconsistencies or material
contradictions when his votes on all issues are considered.” Naumburg, 1970-NMCA-
019, ¶ 5; see UJI 13-2006 NMRA (“The jury acts as a body. Therefore, on every
question on the verdict form which the jury must answer it is necessary that all jurors
participate regardless of the vote on another question. Before a question can be
answered, at least [five] [ten] of you must agree upon the answer; however, the same
[five] [ten] need not agree upon each answer.” (alterations in original)). This
conclusion puts New Mexico among the states ascribing to the “any majority rule.”
See David A. Lombardero, Do Special Verdicts Improve the Structure of Jury
Decision-Making?, 36 Jurimetrics J. 275, 298 (1996) (describing the “any majority
rule” as “all jurors vote on every issue, regardless of their votes on other issues. Any
juror’s votes need not be logically consistent from issue to issue. Plaintiff prevails if

22
the specified number of jurors find in her favor on each element” and stating that New
Mexico has adopted a modified version of the rule.).
{33} 	The issue in Naumburg was juror agreement on each element of the cause of
action: liability and damages. Thus, it differs from the question here. The focus here
is on the factual bases underlying a particular element: negligence. See Hendrix v.
Docusort, Inc., 860 P.2d 62, 67 (Kan. Ct. App. 1993) (discussing the “any majority
rule” and calling the issue of juror agreement on the factual bases for negligence “a
related question”). Nevertheless, the principle in Naumburg supports our conclusion
that a jury need not agree on the factual ground on which a negligence finding is
based.
{34} 	In sum, under the general verdict rule, we assume that all seven theories of
negligence are supported by the evidence and that the first jury’s verdict therefore
could validly rest on any one (or more) of those bases. Moreover, the first jury was not
required to agree on which of the seven bases informed its finding of negligence.
Taken together, these principles undermine our sister states’ concerns about a second
jury being unaware of the factual bases for a prior jury’s negligence finding. We
conclude, based on the operation of the general verdict rule and rules on jury
unanimity, that the district court did not err in ordering a partial trial limited to
causation.

23
B. 	The District Court Did Not Err in Ordering a Third Partial Trial
{35} 	Because it prevailed in the second trial, St. Vincent Hospital attempts to thread
a very small needle by arguing that only the third partial retrial was erroneously
limited to causation, that the district court erred in ordering a third trial based on St.
Vincent Hospital’s misconduct, and that the verdict from the second trial should be
reinstated. Because we have concluded that the district court did not err in limiting
either the second or third trials to causation, we proceed to consider whether St.
Vincent Hospital’s conduct during the second trial warranted a third trial.
{36} 	“It is for the trial court to determine whether there has been prejudicial
misconduct requiring a mistrial.” Chavez v. Atchison, Topeka. & Santa Fe Ry. Co.,
1967-NMSC-012, ¶ 32, 77 N.M. 346, 423 P.2d 34. We will reverse a ruling on a
motion for a new trial only if the district court clearly abused its discretion. Grammer
v. Kohlhaas Tank & Equip. Co., 1979-NMCA-149, ¶ 40, 93 N.M. 685, 604 P.2d 823.
The district court’s discretion in this regard is broad: “The trial court, having seen and
heard all that takes place on the trial, and having better opportunities for the
ascertainment of the merits of the case, is allowed a wide latitude . . . in determining
motions for new trial[.]” Henderson v. Dreyfus, 1919-NMSC-023, ¶ 79, 26 N.M. 541,
191 P. 442 (internal quotation marks and citation omitted).

24
{37} 	A new trial based on counsel misconduct is warranted if the conduct was
improper, and “it was reasonably calculated to cause and probably did cause the
rendition of an improper judgment in the case.” Apodaca v. U.S. Fid. & Guar. Co.,
1967-NMSC-250, ¶ 8, 78 N.M. 501, 433 P.2d 86 (internal quotation marks and
citation omitted). “The burden is upon a party claiming error to demonstrate that his
rights were prejudiced by the claimed error.” Id. ¶ 7.
{38} 	The district court’s order granting a new trial listed eight specific instances of
improper questions, comments, or demeanor by St. Vincent Hospital’s counsel. The
eight instances mentioned in the order were as follows:
5. 	Contrary to the [c]ourt’s prior rulings, comparative fault
issues were raised on the juror questionnaires submitted to the jury
venire by [St. Vincent Hospital];
6. 	Twice during [o]pening [s]tatement, [d]efense counsel
attempted to interject standard of care and negligence issues into the case
contrary to express rulings of the [c]ourt;
7. 	Defense counsel made two quite inappropriate comments
in front of the jury panel during the voir dire phase of the trial;
8. 	In a very short period of time during Dr. Kovnat’s
examination, [d]efense counsel posed no less than seven questions, in
immediate succession, going directly to negligence or standard of care
issues contrary to the [c]ourt’s rulings. There was no good faith basis for
those questions. The purpose appeared to be to undermine the previous
jury’s verdict or to call into question the Court’s proper rulings;
9. 	There were at least four improper impeachment questions
directed to Ms. Bustos by [d]efense counsel;

25
10. 	Defense counsel made numerous improper objections and
questions during Dr. Cheng’s testimony, and two improper questions or
comments regarding Dr. Reichard;
11. 	Defense counsel made improper, gratuitous comments with
regard to Dr. Allen’s testimony which were audible throughout the
courtroom;
. . . .
13. 	Defense counsel made two improper comments during
closing which should not have been interjected and were violative of the
Court’s express and repeated rulings[.]
(Emphasis omitted.)
{39} 	The district court noted that “[d]efense counsel was warned a number of times,
at bench conferences and outside the presence of the jury, about inappropriate
comments, inappropriate questions and demeanor.” In addition, the district court’s
order stated that “[t]he entirety of Plaintiff’s arguments in his [m]otion for [a n]ew
[t]rial were well-taken, and the other portions of those arguments not already specified
herein are adopted[.]” Plaintiff’s motion alleged fifty-five instances of improper
questioning or behavior during the trial and hearings. On appeal, we determine
whether the district court could reasonably conclude that the conduct identified
“transgressed the grounds of professional duty or constituted prejudicial misconduct
in argument presented to the jury.” Enriquez v. Cochran, 1998-NMCA-157, ¶ 132,
126 N.M. 196, 967 P.2d 1136 (internal quotation marks and citation omitted).

26
{40} 	St. Vincent Hospital does not dispute that the alleged conduct occurred. Instead,
it argues that defense counsel’s questioning, comments, and behavior during trial did
not amount to misconduct, much less conduct requiring a mistrial. It also maintains
that, even if some of the defense counsel’s comments or questions were improper,
they did not have any impact on the jury’s verdict.
{41} 	St. Vincent Hospital’s approach is to deal with each instance of asserted
misconduct separately and explain why it could not by itself be improper or
prejudicial. Having dealt with them separately it then argues that there could be no
cumulative effect. The district court apparently disagreed.
{42} 	At the hearing on the motion for a new trial, the district court noted that defense
counsel’s repeated questioning, in spite of the court’s rulings on Plaintiff’s objections
to the questions, did not constitute good faith. Instead, it found that “the purpose
appeared to [be] to undermine or call into question the previous jury’s verdict in this
case, or to undermine and call into question the [c]ourt’s proper . . . rulings in this
case.” It also stated that defense counsel’s conduct was “contrary to the express
rulings of the [c]ourt” and, in at least some cases, an attempt to convey to the jury
“unhappiness or dissatisfaction” with the court’s rulings. Such conduct is potentially
violative of Rule 16-304(C) NMRA of the Rules of Professional Conduct, which
provides that an attorney shall not “knowingly disobey an obligation under the rules

27
of a tribunal except for an open refusal based on an assertion that no valid obligation
exists[.]” See Murphy v. Int’l Robotics Sys., Inc., 710 So. 2d 587, 591 n.5 (Fla. Dist.
Ct. App. 1998) (discussing the rules of professional conduct that might be violated by
improper argument), decision approved sub nom. 766 So. 2d 1010 (Fla. 2000); cf.
Rule 16-305(A) NMRA (“A lawyer shall not . . . seek to influence a judge, juror,
prospective juror or other official by means prohibited by law.”). Finally, the district
court recognized the rarity of new trials based on misconduct, stating, “I’ll note for the
record that I’ve been a judge for approximately seven-and-a-half years, and this is the
first, I repeat the first time I have granted a new trial. But I think—and I find that the
circumstances of this case warrant this extraordinary relief.”
{43} 	St. Vincent Hospital’s arguments invite this Court to second-guess the district
court’s assessment of defense counsel’s conduct and its impact. This we will not do.
A district court “hears the entire trial and is in the best position to determine the
prejudicial effect of attorney misconduct on the jury[.] Accordingly, [the c]ourt will
not lightly disturb its ruling[.]” O’Connor v. George, 2015 MT 274, ¶ 17, 381 Mont.
127, 357 P.3d 323 (internal quotation marks and citations omitted). We affirm the
district court’s order for a new (third) trial.
C. 	The District Court Did Not Err in Excluding Expert Testimony

28
{44} 	On motion by Plaintiff, the district court excluded testimony by Dr. Steven
Pike, a toxicologist. Dr. Pike intended to testify to the effect that Xanax and marijuana
contributed to Mercedes’ death. The district court ruled that
Dr. Pike’s opinion[]s as to both marijuana and Xanax contributing to
Mercede[s]’ demise lack foundation as to dosage, both what dosages
were 	taken 	and 	when. 	Further, 	the 	opinions 	lack 	the 	necessary
foundation of what the interaction is between the two drugs and together
with other drug[]s in [Mercedes’] system.
{45} 	As to Xanax, Dr. Pike testified that Xanax can have a depressant effect on
respiration. He stated that, in the presence of other drugs, especially opioids,
benzodiazepines like Xanax “become extremely potent respiratory depressants in
combination with other drugs.” However, he also testified that “[d]ose determines the
poison” and that it was impossible to state whether Fentanyl, which was prescribed
to Mercedes, was more or less likely to cause respiratory depression than Xanax
without knowing the dose of each drug. Comparing the respiratory depressant
potential of benzodiazepines to that of Benadryl, he stated, “Again, it’s a question of
dose.” He then stated that he did not know how much Xanax Mercedes had in her
system at the time of death and that there was no way of knowing in the absence of
a witness’s statement about the quantity Mercedes took. He acknowledged that one
test detecting the presence of benzodiazepines was post-mortem and of Mercedes’
bile, which “is a concentrating organ.” In an affidavit, he opined, based on a test of

29
Mercedes’ urine, that Mercedes “had to have ingested . . . []Xanax[] within [forty-
eight] hours” of the test, which was conducted within two hours of the time Mercedes
was found not breathing by Mrs. Bustos. He stated that Xanax, Fentanyl, and the other
drugs found in Mercedes’ system “would have been contributory factors, given an
appropriate dose.”
{46} 	As to marijuana, Dr. Pike testified that “marijuana, itself, has some degree of
respiratory depression, not a very large degree, but [it] certainly would be a
contributing factor.” He stated that the quantity of marijuana (or, more precisely, delta
9-tetrahydrocannabinoid) in Mercedes’ urine indicated active, not passive, ingestion
or inhalation. He acknowledged that “we have no data about how much she took of
anything other than the Fentanyl.”
{47} 	St. Vincent Hospital argues that the exclusion of Dr. Pike’s testimony was error.
Generally, the district court’s rulings as to admissibility of expert testimony are
reviewed for an abuse of discretion. State v. Downey, 2008-NMSC-061, ¶ 24, 145
N.M. 232, 195 P.3d 1244. Expert testimony is governed by Rule 11-702 NMRA,
which provides that
[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.

30
{48} 	Essentially, Rule 11-702 contains three requirements: “(1) that the expert be
qualified; (2) that the testimony be of assistance to the trier of fact; and (3) that the
expert’s testimony be about scientific, technical, or other specialized knowledge with
a reliable basis.” Downey, 2008-NMSC-061, ¶ 25. As the parties do not dispute Dr.
Pike’s qualifications, our focus is on the latter two requirements. “Pursuant to Rule
11-702, the district court is required to act as a ‘gatekeeper’ to ensure that an expert’s
testimony rests on both a reliable foundation and is relevant to the task at hand so that
speculative and unfounded opinions do not reach the jury.” Parkhill v. Alderman-Cave
Milling & Grain Co. of N.M., 2010-NMCA-110, ¶ 12, 149 N.M. 140, 245 P.3d 585.
One way to avoid speculative opinions is to require an expert’s opinion to be based
on or relate to the facts of the case. Downey, 2008-NMSC-061, ¶ 30 (“One aspect of
relevance is whether expert testimony proffered in the case is sufficiently tied to the
facts of the case that it will aid the jury in resolving a factual dispute.” (internal
quotation marks and citation omitted)).
{49} 	The district court cited a series of cases in support of its ruling, including
Parkhill and Downey. We therefore discuss those cases next.
{50} 	The question of whether an expert’s opinion was sufficiently tied to the facts
was addressed recently in Downey. There, the state sought to admit testimony as to the
defendant’s blood alcohol content (BAC) at the time of a traffic accident, where the

31
sole BAC test was conducted six hours after the accident. 2008-NMSC-061, ¶ 13.
Based on retrograde extrapolation, “which calculates an individual’s prior BAC level
on the basis of a subsequently administered BAC test[,]” id., the expert proposed to
testify that the defendant “had a BAC in the range of .075 to .11 at the time of the
collision.” Id. ¶ 16. The expert’s conclusions were based on a series of assumptions
about the timing of the defendant’s last drink and whether the defendant was in the
pre-absorption, peak, or post-absorption phase of the BAC curve at the time of testing.
Id. ¶ 32.
{51} 	The district court admitted the expert’s testimony and this Court affirmed in a
divided opinion. Id. ¶¶ 19, 22. On certiorari, the Supreme Court reversed. Relying on
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993), the Court
noted that “[t]he primary inquiry is whether the scientific methodology ‘fits’ the facts
of the case and thereby proves what it purports to prove.” Downey, 2008-NMSC-061,
¶ 30. It continued, “Accordingly, for scientific evidence to be admissible under Rule
11-702, ‘the reasoning or methodology underlying the testimony [must not only be]
scientifically valid,’ it also must be ‘properly . . . applied to the facts in issue.’ ” Id.
(alterations in original) (emphasis omitted) (quoting Daubert, 509 U.S. at 592-93).
While the Court acknowledged that experts often base their opinions on factual

32
assumptions, it also stated that “those assumptions in turn must find evidentiary
foundation in the record.” Downey, 2008-NMSC-061, ¶ 34. It concluded that,
[g]iven that [the expert] did not have the facts necessary to plot [the
d]efendant’s placement on the BAC curve, he could not express a
reasonably accurate conclusion regarding the fact in issue: whether [the
d]efendant was under the influence of intoxicating liquor at the time of
the collision. [The expert]’s testimony did not ‘fit’ the facts of the . . .
case because he simply assumed for the purpose of his relation-back
calculations that [the d]efendant had ceased drinking prior to the
collision and, therefore, was post-absorptive.
Id. ¶ 33. Because “the [s]tate did not produce any evidence regarding when [the
d]efendant last consumed alcohol, much less the quantity consumed, [the expert]’s
assumption [was] mere guesswork in the context of [that] particular case.” Id. ¶ 34.
{52} 	In Parkhill, this Court considered whether the district court erred in excluding
expert testimony on the relationship between the plaintiffs’ illnesses and exposure to
an additive (monensin) in horse feed. 2010-NMCA-110, ¶ 7. The district court had
ruled that the expert’s conclusion that monensin had caused the plaintiffs’ illnesses
was insufficiently tied to the facts of the case because “in order for [the expert] to
apply his reasoning or methodology reliably to the facts in the present case, [his]
opinion must be based on some quantification of the dose of monensin received by the
[plaintiffs].” Id. ¶ 37. Because the expert did not have such data, his opinion was
irrelevant to the case at hand. Id. ¶ 36. On appeal, this Court affirmed, stating that,
although the expert acknowledged that dosage was important, “[the expert] did not

33
attempt to quantify the dose of monensin received by the [plaintiffs], nor did he make
any statement to the effect that it was not possible to quantify the dose of monensin
to which the [plaintiffs] had been exposed.” Id. ¶ 38.
{53} 	St. Vincent Hospital argues that the district court’s exclusion of Dr. Pike’s
testimony was error because (1) Dr. Pike was permitted to rely on circumstantial
evidence in his conclusions, and (2) the district court misread Parkhill. We disagree.
Dr. Pike testified specifically that the lethality of benzodiazepines and other drugs is
dose-dependent. Although he stated that benzodiazepines in combination with other
drugs can be dangerous, in light of his testimony about the importance of dosage, we
cannot conclude that the district court abused its discretion in finding Dr. Pike’s
testimony too speculative or conjectural to be helpful to the jury, consistent with
Downey and Parkhill. See Parkhill, 2010-NMCA-110, ¶ 38 (affirming the exclusion
of evidence where the expert there agreed that the dosage was critical to causation, but
failed to quantify the dosage received by the plaintiffs). Similarly, with respect to
marijuana, Dr. Pike had no knowledge of the quantity of marijuana consumed and
testified only that marijuana generally could have a mild depressive effect on
respiration. It was not an abuse of discretion to find this testimony too amorphous to
assist the jury. See Downey, 2008-NMSC-061, ¶ 32 (“Expert testimony may be
received if, and only if, the expert possesses such facts as would enable him to express

34
a reasonably accurate conclusion as distinguished from mere conjecture.” (internal
quotation marks and citation omitted)).
{54} 	St. Vincent Hospital also argues that the district court misinterpreted Parkhill.
It maintains that “Parkhill stands only for the proposition that where evidence of
dosage is available, then an expert must consider it.” However, when dosage is not
available, it argues, “then an expert may rely on his or her experience, training, skill,
education, or knowledge, and apply it to the circumstantial evidence available.” St.
Vincent Hospital points to the fact that the Parkhill Court distinguished out-of-state
cases permitting circumstantial evidence of causation by stating that those “cases
[were] not applicable to the circumstances [in Parkhill] because direct evidence
of . . . dosage could have been obtained.” Parkhill, 2010-NMCA-110, ¶ 43 (emphasis
added). It argues that those cases should apply here because direct evidence of dosage
was unobtainable. We decline to interpret Parkhill as stating an absolute rule that
obtainable direct evidence of dosage must be considered by an expert to support
causation, but that where such evidence is not obtainable, circumstantial evidence will
suffice. Instead, we adhere to the underlying principle in both Parkhill and Downey,
which is that the relevance of an expert’s opinion depends on its connection to the
facts of the case. Downey, 2008-NMSC-061, ¶ 30; Parkhill, 2010-NMCA-110, ¶ 36.
Where those facts require dosage data in order to render the expert’s opinion relevant,

35
the district court acts within its discretion to exclude testimony not based on such data.
{55} 	Finally, St. Vincent Hospital also referred this Court to Acosta v. Shell Western
Exploration & Production, Inc., 2016-NMSC-012, 370 P.3d 761, which was decided
after briefing was complete in the present matter. In Acosta, the New Mexico Supreme
Court reversed this Court’s affirmance of the district court’s exclusion of expert
testimony on the ground of the “analytical gap” between the animal studies relied on
by the expert and the effects felt by the plaintiffs in that case. Id. ¶¶ 26, 36. The
Supreme Court held that exclusion of the expert’s testimony was error because
assessment of any gap between the animal studies and application to the plaintiffs was
within the jury’s purview. It stated, “When the district court found that [the expert’s]
study ‘fail[ed] to bridge the gap from association to causation,’ it improperly blurred
the line between the district court’s province to evaluate the reliability of [his]
methodology and the jury’s province to weigh the strength of [his] conclusions.” Id.
¶ 41 (second alteration in original) (citation omitted). By submission of this opinion,
we understand St. Vincent Hospital to be arguing that, under Acosta, it was within the
jury’s purview to assess the impact of the lack of dose information on the weight of
Dr. Pike’s testimony.

36
{56} 	We are not persuaded that Acosta’s holding applies here for several reasons.
First, Acosta was a toxic tort case and the issue there was whether the plaintiffs’
injuries were caused by exposure to contaminants associated with the defendant’s oil
operations. Id. ¶ 5. The specific question related to expert testimony was “whether the
associations revealed by [the expert’s] own study, the animal studies, and other
published studies regarding chemical exposure provided reliable support for an
inference of causation in humans.” Id. ¶ 40. Thus, the question there had to do with
general causation. Id. ¶ 29 (discussing general and specific causation in toxic tort
cases and stating that the district court never reached the question of specific
causation). The analogous question in this case would be whether benzodiazepines in
sufficient doses cause respiratory depression. This question is not in dispute. Instead,
the question here is one of specific causation: whether Mercedes received a sufficient
dose. The difference in the focus of the inquiry makes Acosta inapposite here. Second,
even if Acosta’s principle could be readily applied here, it is factually different as
well. Unlike here, the expert in Acosta had calculated the dose of the contaminants
received by the plaintiffs. Id. ¶ 40.
{57} 	Finally, to the extent St. Vincent Hospital is arguing that Acosta abrogated
Downey, we disagree. The Acosta Court relied on Downey in its explanation of the
requirements for expert testimony. Acosta, 2016-NMSC-012, ¶ 24 (relying on Downey

37
for the proposition that “[a] court must determine whether the proffered expert
testimony is sufficiently tied to the facts of the case that it will aid the jury in
resolving a factual dispute.” (internal quotation marks and citation omitted)). Nothing
about the holding in Acosta changes this basic requirement. We conclude that the
holding in Downey, on which the district court properly relied, is applicable here.
{58} 	In sum, the district court did not err in excluding Dr. Pike’s testimony related
to Xanax and marijuana.
CONCLUSION
{59} 	For the foregoing reasons, we affirm.
{60} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
________________________________
RODERICK T. KENNEDY, Judge
________________________________
LINDA M. VANZI, Judge