July 23, 2018- Frank Dart v. Chief Kyle Westall, No. A-1-CA-34675

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Filed

Court of Appeals of New Mexico

7/23/201

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO “*

Opinion Number:

Filing Date: July 23, 2018
NO. A-1-CA-34675
FRANK DART,

Plaintiff-Appellee,
V.

CHIEF KYLE WESTALL, —

CITY OF FARMINGTON POLICE
DEPARTMENT, and

CITY OF FARMINGTON,

Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Louis E. DePauli Jr., District Judge

Kennedy Kennedy & Ives, LLC
Shannon L. Kennedy

Joseph P. Kennedy

Laura S. Ives

Albuquerque, NM

for Appellee
Miller Stratvert P.A.

Virginia Anderman
Albuquerque, NM

Offige
Z po
k Reynolds

8 11:30 AM
of the Clerk

4

Lorenz Law
Alice T. Lorenz
Albuquerque, NM

for Appellants

1 	OPINION
2 VIGIL, Judge.
3 {I} 	TheCityofFarmington,FarmingtonPoliceDepartmerit(FPD),andFPDChief
4 Kyle Westall (collectively, Defendants), appeal from a jury verdict awarding damages
5 to Plaintiff Frank Dart, an FPD detective, under New Mexico's Whistleblower
6 Protection Act (the WPA), NMSA 1978, §§ 10-16C-1 to -6 (2010). Plaintiffs WPA
7 claim stemmed from his communication to Defendants that he believed Defendants
8 were in violation ofNMSA 1978, Section 32A-4-3 (2005)1 by failing to promptly and
9 1Section 3 2A -4-3 states in pertinent part:
10 	A. 	Every person, including a licensed physician; a resident 	or an
11 	intern examining, attending or treating a child; a law enforcement office;
.. 12 	a judge presiding during a proceeding; a registered nurse; a visiting
13 	nurse; a schoolteacher; a school official; a social worker acting in an
.14 	official capacity; or a member of the clergy who has information that is
15 	not privileged as a matter of law, who knows. or has a reasonable
· 16 	suspicion that ~ child is an abused or neglected child shall report the
17 	matter immediately to: 	.
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(1) 	a local law enforcement agency;
(2) 	the department; or
(3) 	a tribal law enforcement or social services agency for
any Indian child residing in Indian country.

1 immediately investigate reports of child abuse and neglect referred to FPD from the
2 New Mexico Children, Youth and Families Department (CYFD). Defend!lllts raise
3 four issues on appeal: (1) whether the district court erred in denying their pretrial
4 motion for summary judgment; (2) whether the jury's verdict in favor ofPlaintiffwas
· . ,.. 	5 supported by substantial evidence; {3) whether the district court abused its discretion
6 in denying admission of internal FPD memoranda that Defendants contend were
7 	B. 	A law enforcement agency receiving the report shall immediately
.8 	transmit the facts of the report and the name, address and phone number
,. 	9 	of the reporter by telephone to the department and shall transmit the
. 10 	same information in writing within forty-eight hours. The department
11 	shall immediately transmit the facts of the report and the name, address
12 	and phone number 	of the reporter by telephone to 	a local law
13 	enforcement agency and shall transmit the same information in writing
14 	within forty-eight hours ....
15 	C. 	The recipient of a report under Subsection A of this section shall.
16 	take immediate steps to ensure prompt investigation of the report. The
17 	. investigation shall ensure that immediate steps are taken to protect the .
·18 	health or welfare of the alleged abused or neglected child, as well as that
19 	of any other child under the same care who may be in danger of abuse
·. 20 	or neglect. A local law enforcement officer trained in the investigation
21 	of child abuse and neglect is responsible for investigating reports of
22 	alleged child abuse or neglect at schools, daycare facilities or child care
23 	facilities.
24
25 	F. 	A person who violates the provisions of Subsection A of this
26 	section is guilty of a misdemeanor.
2

1 crucial to their defense; and (4) whether a comment made by Plaintiffs counsel
2 during a bench conference, which may have been heard by the jury, prejudiced
3 Defendants and tainted the jury's verdict. We affinn.
4 BACKGROUND
5 {2} 	As an FPD detective, Plaintiff was assigned to investigate crimes against
6 children, including CYFD referrals. He was later assigned to serve simultaneously on
7 an 	FBI-FPD 	Cyber 	Crime 	Task Force 	(CCTF) 	aimed 	at 	investigating 	and
8 apprehending high-technology criminals. 	At the time 	of the 	communications
9 underlying Plaintiffs WPA claims, Plaintiffs direct supervisor was Sergeant Robert
·. 10 Perez. Plaintiffs complaint alleged multiple violations of the WPA. Defendants'
11 	motion for summary judgment was granted on all the claimed violations except one.
-,.. 	12 The district court determined that there were disputed issues of material fact about
· ·13 .whether Plaintiff made communications to FPD concerning the department's. failure
14 to 	fulfill 	its 	statutory 	duties 	under 	Section 	32A-4-3 	and 	whether 	those
· · 	15 	communications were protected under the WP A, and permitted this claim to proceed
16 to trial.
17 {3} 	Following trial, the jury awarded Plaintiff $4,000 in economic damages and
18 awarded $200,000 damages for emotional pain and suffering. Defendants filed two
19 post-trial motions. The first sought judgment as a matter oflaw, arguing that Plaintiff
3

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1 failed to present sufficient evidence to support th~ verdict. The second sought
2 remittitur of the award for pain and suffering, or in the alternative, a new trial,
3 arguing that the jury's award was not supported by the evidence, and the district court
4 erred in excluding evidence that Defendants argued was crucfal to their defense, and
5 that Defendants were prejudiced by statements made by Plaintiff's coun~el during a
6 bench conference that may have been heard by the jury. The district court denied the
7 post-trial motions, and Defendants appeal.
8 DISCUSSION
9 I.
10
The District Court's Partial Denial of Defendants' Motion for Summary
Judgment
11 {4} 	We begin by addressing Defendants' claim that the district court erred in
12 denying their motion for summary judgment. Because it did so only on the basis of
13 its finding that Plaintiff h~ raised genuine issues of material fact existed as to
14 whether Plaintiff engaged in communications protected under the WPA, this
15 argument is not reviewable. See Green v. Gen. Accident Ins. Co. of Am., 1987-
16 NMSC-111, ~ 19, 106 N.M. 523, 746 P.2d 152 (holding that "denial of a motion for
17 summary judgment is not reviewable after final judgment on the merits[, and i]f a
18 ~ummary judgment motion is improperly denied, the error is not reversible for the
19 resultbecomesmergedinthesubsequenttrial"); Gallegosv. StateBd ofEduc., 1997-
20 NMCA-040, ~~ 7~12, 123 N.M. 362,940 P.2d 468 (stating that a narrow exception
4

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1 to the general rule stated in Green applies to pennit post-trial appeal of denial ~f
2 summary judgment, but only if"(l) the facts are not in dispute; (2)the only basis of
3 the ruling is a matter of law which does not depend to any degree on facts to be
4 addressed at trial; (3) there is a denial of the motion; and (4) the~e is an entry of a '
S final judgment with an appeal therefrom"). The Green exception does not apply
6 because as already discussed, the facts in the summary judgment· record were
7 disputed. Moreover, those disputes were resolved by the jury irtPlaintiff's favor after.
8 hearing both sides.
'·. ... 	9 TI. 	Sufficiency of the Evidence Establishing Plaintiff's WPA Claim
. . . ··-·
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10 {5} 	The 	focus 	of Defendants' 	appeal 	is 	that 	insufficient 	evidence . was
. 11 presented to support the jury's verdict in favor of Plaintiff under the WPA .
12 Specifically,. Defendants challenge the sufficiency of the evidence to establish that
13 ( i) "Plaintiff engaged in protected activity by communicating to his superiors his
, ·.. 	14 belief that [Defendants]were violating state law by failing [their] duty required by'
15 state !aw"; and (2) "Plaintiff had a good faith belief that ... Defendants were in
16 violation of state law[.]"
17 A. 	Standard of Review
18 {6} 	"In reviewing a sufficiency of the evidence claim, this Court views the
19 evidence in a light inost favorable to. the prevailing party and disregards any
s

1 inferences and evidence to the contrary." Littell v. Allstate Ins. Co., 2008-NMCA~
2 ()12,, 13, 143 N.M. 506, 1.77 P.3d 1080 (alteration, internal quotation·marks, and
3 citation omitted). "We defer to tJ!e jury's determination regarding the credibility of
.. 	4 witnesses and the ~econciliation of inconsistent or contradictory evidence." Id "We
.. · ,. 	·5 simply review the evidence to determine whether there is evidence that a reasonable ·
· ·; · 	6 mind would find adequate to support a ·conclusion." I d. (internal quotation marks ~d
7 citation omitted). "Jury instructions become the law of the case against which the
8 sufficiency of the evidence is to be measured." Atler v. Murphy Enters. Inc., 2005-
9 NMCA-006, ~ 13, 136 N.M. 701, 104 P.3d 1092 (internal quotation marks and
10 citation omitted); see also Littell, 2008-NMCA~O 12, 1f 33 (stating that in reviewing
~ 1 the jury's verdict in favor of the plaintiff as to his hostile work environment claim for ,
12 substantial evidence~ "[w]e evaluate the evidence with reference to the lat!guage. of
13 the jury instructions given, which constitute the law of the case").
14 B. 	The' Jury Instructions
15 {7} 	There were no objections to any of the jury instructions we discuss below. The
16 jury was instructed, in pertinent part:
17 	The Plaintiff ... seeks compensation from ... Defendants ... for
18 	damages that Plaintiff says were caused by retaliatory actions in
19 	violation ofthe [WPA.]
20 	More sp·ecifically, Plaintiff asserts the following:
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1. 	While Plaintiffwas a detective, he communicated to
his 	superiors 	his 	good 	faith 	belief 	that 	the
Defendants were violating state law by failing in
[their] duties regarding the handling Qf child abuse
cases.
2. 	Based upon his communications to his superiors that
... Defendants ... were violating the law, Plaintiff's
superiors engaged in retaliatory action against the
Plaintiff.
3. 	Plaintiff suffered economic and emotional damage
because of the adv~rse employment aptian taken ·
against him.
4. 	Plaintiff claims he is entitled to damages he suffered
because Defendants' actions violated the [WPA].	. 	..
15 The jury was further instructed that Plaintiff had the· burden of proving the following
16 essential elements "by the greater weight of the evidence":
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1. 	Plaintiff 	engaged 	m 	protected 	activity 	by
communicating 	to 	his 	superiors 	his 	belief
that ... ODefendantsO were violating state law by
failing [their] duty required by state law; ·
2. 	Plaintiff had a good faith beiief that ... Defendants
were in violation of state law;
3. 	· Plaintiff suffered a retaliatory action by Defendants;
4. 	Plaintiff's protected activity was a cause of the
retaliatory action;
5. 	. .. Plaintiff suffered damages because of the
retaliatory actions.
7

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1 "The jury was instructed that [t]o prove by the greater weight of the evidence means
4 to establish that something is more likely true than not true." A "fact[,]" the jury was
3 also instructed, "may be proved by circumstantial evidence. Circumstantial evidence
4 consists of proof of facts or circumstances which give rise to a reasonable inference .
S of the truth of the fact sought to be proved.''
6 C. 	Analysis
7 1.
8
Sufficient Evidence Was Presented to Establish That Plaintiff Engaged in
Communications That Constituted a "Protected Activity"
9 (8} 	.Regarding the first element ofPlaintiff's"WPA claim, the jury was instructed
_1 0 that "[a] public employer violates the [WP A] ifit takes a 'retaliatory ~ction' against
11 	a public employee because the public employee communicates to the public
12 employer, or to a third party, infonnation about an action or a failure to act that th(,'
. 13 public employee believes in good faith constitutes an unlawful or improper act." This
14 kind of communication constitutes a "protected activity.'' After deliberations, the jury
.15 answered "Yes" in response to a special interrogatory asking whether "Plaintiff
16 engage[d] in protected activity by communicating to his superiors his belief that
·· ·· 	17 Defendants were violating state law by failing its duty required by state law[.]"
18 {9} 	The evidence at trial established that Plaintiffcommunicated to his supervisors
19 an4 chain of command between 2002 and 2011 his belief that FPD was not timely
t 20 investigating CYFD referrals. Plaintiff first voiced this belief in 2002 to his
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1 supervisor at the time, Sergeant Kim Walker, who responded by telling Plaintiff that
2 "he didn't have time to deal with It, that he knew that there were a lot of' CYFD
3 referrals, and that Plaintiffjust needed to do the best he could with them. Plaintiff
4 later voiced his belief that CYFD referrals were not being timely investigated, that it ·
5 was ''impossible" for him to handle his casel~ad, and that he needed n;tore help and
6 resources, to Defendant Westall both when Defendant Westall served as lieutenant
7 and captain of the FPD Detective Division. Plaintifftesti:fieq that Defendant Westall
8 responded that he could not give Plaintiff any additional resources.
9 uo} 	Similarly, in 2009 and 2010, Plaintiff requested additional resources from
10 Sergeant Perez to investigate CYFD referrals, which he did not receive When
1i 	Plaintiff was assigned several new CYFD referrals to review in March 2011 by
12 Sergeant Perez, Plaintifftold Sergeant Perez thatFPD could not'~ustread them. They
13 	actually 	have 	to 	be Plaintiff followed up on this interaction by 	sending a
14 memorandum to Sergeant Perez and others in his chain of co.nlmand dated March 10,
15 2011, in which Plaintiff characterized FPD' s failure to timely investigate or provide
16 him with the resources to investigate CYFD referrals as "potential negligence" on the
17 part ofF~D.
9

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1 {11} 	Viewing the evidence in the light most favorable to Plaintiff and indulging all
2 reasonable inferences in favor of the verdict, we conclude sufficient evidence
3 supported the jury's finding on the firs~ element ofPlaintiffs WPA claim.
4 2.
s
6 {12)
Sufficient Evidence Was Presented to Establish That Plaintiff Had a Good
Faith Belief That Defendants Were in Violation -of State Law .
On the second·element ofPlaintiff's WPA claim, the jury was instructed that
7 "[a] public eiiJ.ployee believes in 'good faith' that an action or failure to act is an
8 unlawful or i~proper act when a reasonable basis exists in fact as evidenced by the
9 facts available to the public employee/' An " 'unlawful or improper act' " was
10 defined as a ''proposed or actual practice, procedure, action or failure to act on the
11 part of a public employer[,]'' which "violates or may violate a federal law, a federal
12 regulation, a state law, a state administrative rule or a law of an:y political subidivision
13 of the state."
... . . 	14 {13} 	Additionally, as .set forth above, Section 32AM4M3(C) provides that recipients
15 ofCYFD referrals "shall take immediate steps to ensure prompt investigation of the
16 report. The investigation shall ensure that immediate steps are taken to protect the
· · · 	1'7 health or welfare of the alleged abused or neglected child, as well as· that of any other
18 child under the same care who may be in danger of abuse or neglect." A copy of
19 Section 32A-4M3 was admitted into evidence. The jury answered "Yes" in respopse
10

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1 to a special interrogatory on the special verdict form asking whether "Plaintiffs
2 conununication [c~nstituting a protected activity was] made in good faith[.]"
3 (14} 	·In light of the jury's receipt of a copy of ~ection 32A-4-3 and the evidence
4 presented at trial, a reasonablejuror·could conclude Plaintiffiii "good faith" beli~ved
.
5 that Defendants were in violation of state law in failing to immediately and promptly
6 investigate CYFO referrals. Evidence supporting Plaintiff's "reasonable basis" for
7 this belief stenuned from the evidence that between 2001 and 2004 or 2005, Plaintiff
8 was the only detective investigating CYFD child abuse and neglect referrals to FPD;
9 it was routine for Plaintiff to have a caseload of siXty pending cases with "literally .
10 hundreds ofCYFD reports that were coming in"; and Plaintiff was aware that he
·11 	c·ould not investigate all of the cases involving crimes against children and CYF:p
12 referrals that came across his desk, requiring him to balance his investigatorr
13 resppnsibilities through a "triage" process in which he would prioritize cases where
·14 a child was "more in ~anger than in another case, and' I ~ould have to focus my
1S attention on that case.... And in ... the other cases, I simply could not investigate
16 them by myself."
17 {iS} 	Additionally, as already described, Plaintifftestified that he repeatedly voiced
18 his belief that there was a lack of resources provided to him ,by FPD to investigate
11

1 CYFD referrals amounting to ''potential n~gligence" on the part ofFPD, but that his
2 supervisors repeatedly failed to act to remedy the problem.
· ~:. ·'·· 	3 {16} · 	Viewing the evidence in the light most favorable to Plaintiff and indulging all
·· ·· '··; ;;- · . 	4 reasonable inferences 41 favor of the verdict, we conclude ·sufficient evidence
· ·'' i~ 	5 supported the jury's finding on the second element ofPlaintiffs WPA claim.
• :·.. c'':··~·· 	6 {17}· . In so conclu4ing, we reject Defendants' argument that Plaintiff failed to
.. · .. 	·; ·. 	7 establish that he hacl. a "good faith" basis for believing Defendants were in violation
8 of state law in ·failing to promptly and immediately investigate CYFD referrals.
•:.,,·,:·· ;.·. 	9 because the only .criminal penalty imposed under Section 32A-4-3 applies to the
··.. ::: ·.. · ·. 10 mandatory reporting requirement established under Subsections 1).. and F. Plaintiff:
. , · 	:":·· : .;. · 11 	under the instructions given to the jury, was not required to establish that he had a ·
·...... 	· ·.. · 12 "good faith" belief that Defendants were committing a crime in their handling of
·· .;·.: ,.:: ' · i." 	13 CYFD referrals, but only that Defendants' handling of these cases was improper or ·
:,- . 	14 in violation of law. Plaintiff satisfied this burden.
. . . .: '" ·_, '' .. ~ -:
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15 3.
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19 {18)
Sufficient Evidence Was Presented to Establish That: Plaintiff Suffered
Retaliatory Actions by Defendants; Plaintiff's Protected Activity Was a
Cause of the Retaliatory Action; and That Plaintiff Suffered Damages
Because of the Retaliatory Action
Although Defendants do not specifically challenge the jury's 	findings
· 20 regarding elements three through five.ofPl~intiff's WPA claim, we briefly address
12
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l 	the 	supportive 	evidence 	that 	undetpins 	these 	detenninations 	given 	the
2 interrelationship of each of the elements within a chiim brought under the WPA.
3 {19} 	The 	jQry 	Was 	instructed 	that 	a 	"[r]etaliatory 	action" 	is 	"taking 	any
4 discriminatory or adverse employment action against a public employee iti the tenns·
· 5 and conditions of public employment." "In determining whether Plaintiff was
6 retaliated 	against 	because 	he 	engaged 	in 	protected 	activity, 	you· 	must
7 determine whether that conduct was a motivating factor in theretaliat<;>ry
8 conduct against Plaintiff."
9 {lO} 	Further, the jury was instructed, a "motivating factor" is "a factor that plays a
10 role in the decision to retaliate against Plaintiff. It need not be the only reason, nor the
11 last or latest reason, f~r the retaliatory actions of . . . Defendants." ·The jury was .
12 instructed as well, that "[a)n act is a cause of injury or ·harm i.f it contributes to
13 bringing about the injury or hapn. It need not be the only explanation· for the injury
14 or harm, nor the reason that is nearest in time or place. It is sufficient if it. occurs in ·.
15 combination with some other cause to produce the result.." Lastly, the jury was
16 instructed that in order to be a " 'cause,' the act, nonetheless, must be reasonably ·
17 connected as a significant link to the injury or harm."
18 {11} 	The jury answered "Yes" to special interrogatories asking: (1) "Did the
19 Plaintiff suffer a retaliatory action by any of . . . Defendants?"; (2) "Was the
13

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I Plaintiff's protected activity a cause of the retaliatory action?"; and (3) "Did
2 Defendants' conduct cause economic harm ... and emotional pain and suffering to
3 Plaintiff?"
4 ·{22} 	Evidence was presented that between 2004 and 2010, Plaintiff consistently
5 received positive perfonnance evaluations for his work and was recognized for his
6 dedication in investigating crimes against children. However, in response to his
7 March I 0, 2011 memorandum, Plaintifftestified that he was reprimanded by Sergeant
8 Perez and retaliated against by FPD.
9 {23} 	Evidence of Defendants' retaliatory action was presented by testimony that
10 Defendants removed Plaintiff from the CCTF, created a hostile work. environment,
. , 	11 made humiliating comments about him to his c9lleagues, issued him a substandard
12 work vehicle, and required him to surrender his key to the forensic lab and cease·
13 investigating.his caseload of crimes against children .
. 14, {24} 	Further, the jury was provided Plaintiff's M~ch 10,-2011 memorandum
1S voicing his beliefthat Defendants' handling ofCYFD referrals constituted "potential
16 negligence" and was a "motivating factor" in Defendants' retaliation against him
I 7 given that Defendants' reprimand and retaliatory actions were undertaken only after
18 Plaintiffs chain of command's receipt of the memorandum.
14

1 {l5} 	Finally, Plaintiff testified that he suffered depression, rage, and fear that he
2 would be terminated before he reached eligibility for retirement that caused him to
3 seek counseling, as well as the loss of detective and CCTF overtime pay resulting
4 from transferring back to the patrol division.
.:1·-.L ··; 	5 IlL · The - District 	Court's · Denial 	of 	Admission 	of 	Sergeant 	Perez's
6 	Memorandum
· · 	7 {l6} 	Defendants assert that the diStrict court erred in denying admission of the
._~_.
-8 memorandum drafted by Sergeant Robert Perez, which documented the reprimand of
9 Plaintiff that occurred after Plaintiff's chain of command received Plaintiff's March
.. ········l·',:l
10 10, 2011 memorand~ under the business records exception to the rule against
11 	hearsay, see Rme 11-802 NMRA; Rule 11-803(6) NMRA. Even if we assume that the
.·:· ..... 	12 memorandum was .admissible, we conclude that any error in excluding it was
. ' . ,.. 	,. ~ .._ .	
.-_ 	13 harmless.SeeCummingv.Nielson's,Inc., 1988-NMCA-095, ~28, 108N.M.198, 769
... t; ; ~ ... 	14 P.2d 732 ("We review the admission and exclusion of eviden~e under an abuse of
I . ,~·' 15 discretion standard. In addition, the complaining party on appeal must show the
. ~- '· .' .,. 	16 erroneous admission and exclusion of evidence was prejudicial in order to obtain a
17 reversal.'; (citationomitted));seealso Gallegosv. Ci~zens/ns. Agency, 1989-NMSC-
18 055, ~~ 36-37, 108 N.M. 722, 779 P.2d 99 (detennining that erroneously admitted
19 hearsay does not automatically warrant reversal; there must be a showing that the
20 admission was prejudicial under Rule 1-061 NMRA). Rule 1-061 provides:
15

1 	No error or defect in any ruling or order or in anything done or
2 	omitted by the court or by any of the parties is ground for granting a new
3 	trial or for setting aside a verdict or for vacating, modifying or.otherwise
·~ ·' •.. 	4 	disturbing a judgment or order, unless rewsal to take such action
·. ~' • ' •• :, • :· • ! 	5 	appears to the court inconsistent with substantial justice. The court at
6 	every stage of the proceeding must disregard any error or defect in the
7 	proceeding which does not affect the substantial rights of the parties.' .. ' ~	
. ) .. ~
8 {27} 	In support of their Claim of prejudice resulting from the district court's
9 exclusion of Sergeant Perez's memorandum, Defendants argue that "(w]ritten
10 confinnation that no one in [Plaintiffs] chain of command ever reported that
11 	[Plaintiff] was claiming a violation of Section 32A-4-3, and that what'was conveyed
· · · · ::, 	12 was the admitted failure to obey a direct order and [Plaintiff's] own representations
·· ;:, . ' 	13 that he could not do hisjobandbe on theCCTF, was.vital to [Defendants'] defense.,.
., :; · 	14 "Without these documents," Defendants contend, they "had only post-lawsuit ·
.. , ' · .~··· 	15 testimony, rather than contemporaneously prepared documen.ts, to prove that ithad
'· 	·-:·:··:.:·.1 	· . 16 not underst~od that [Plaintiff] was attempting to complain: of a illegality or
17 unlawfulness."
. '.· . 18 {28} 	However, as Defendants Goncede, the content of Sergeant Perez's memoranda
·- · ·,.:-,' · 	19 wascumulativeofothertestimonythatPlaintiff'schainofcommand'sunderstanding
· · ·' 	20 of Plaintiffs complaints was that FPD was defrauding the FBI b~sed on Plaintiffs
21 	misreading ofthe FBI..:FPD's Memorandum ofUnderstanding establishing the CCTF;
22 that Plaintiffwas unable to balance his work duties; and not thatFPD was in violation·
16

1 ofSection32A-4-3.See Cisnerosv. Molycorp, Inc., 1988-NMCA-080, ,,27-28, 107
2 N.M. 788, 765 P.2d 761 (holding that any error in denying admission of medical
3 records regard~g a hearing examination that a workers' compensation .claimant
. 	.
4 underwent in 1971 because they were not authenticated was harml~ss where the
5 records were cumulative of the claimant's testimony that he noticed hearing loss in
6 1971);Lujan v. CircleKCorp., 1980-NMCA-107, ,21, 94N.M. 719, 616P.2d432
7 (concluding that the exclusion of exhibits that were cumulative of testimony provided
8 at trial was not error)~
·: ,·; •.,. 	9 {29} 	Therefore, we conclude that the district court's exclusion ofthe memoranda did
10 not affect the substantial rights of Defendants, and as a result, any potential error in·
... . . ·,~_,_ 	11 	excludingitfromevidencewashannless.SeeHammondv. Reeves, 1976-NMCA-069,
·. :.j 	12 ~~ 13-14, 89N.M. 389, 552P.2d 1237 (holdingthatalthough~eborrowerproffered'
·· ·.'> . · · 	13 at trial polygraph tests that were relevant and admissible to his usury claim against·
·· .:.,·: .. ;:, ·' 	14 his·Iender, the district court's error in excluding these tests was harmless under Rule
-~ ::; : 	::. ·· · 	15 	1-061 where exclusion did not affect any substantial rights of the borrower).
16 IV.
17
Plaintiff's Counsel's Bench Conference Statement Concerning Defendants'
Reason for Failing to Call Sergeant Perez to Testify
18 ·{30J. 	Defendants' final claim raised in their post-trial motion for remittitur, or in the
19 alternativ~ a new trial, is that they were unfairly prejudiced by the statement made by
20 Plaintiff's counsel during a bench conference, which may have been heard by the
17

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1 jury, that Defendants refused to ~all Sergeant Perez to testify because he was suing.
2 FPD. Iri support of this claim, Defendants filed the affidavit of a paralegal for the law
3 firm representing Defendants. The paralegal stated that although she did not hear
4 Plaintiff's 	counsel's 	statement, 	Defendant Westall 	and 	Deputy 	Chief Keith
·· . 5 McPheeters (who were sitting at defense counsel's table at the time) heard the
6 statement. She also stated that after trial, she spoke with one of the jurors who told
7 h~r that "she had not personally heard the statement[,] ... but that other jurors had
8 heard it and it was discussed during breaks."
·9 {31} 	Defendants contend that Plaintiffs counsel's statement was "clearly intended"
.. 10 to be heard by the jury and to prejudice Defendants by permitting them "to wander
. 11 onto the path ·ofspeculation, to wonder what Perez might have said about [Plaintiff's]
12 case, why [FPD] would not have wanted the jury to 'hear him, whether this .lack of
· . · 13 candor extended to other aspects of the case, and whethdr; [FPD] had mistreated
14 :Perez." And "[b]ecause information outside the evidence was brought to the ·attention ·..
15 of the jury[,]" Defendants argue that their "right to a fair trial was violated.'~ We
16 disagree.
17 {3lJ 	We review the district court's denial of a motion for a new trial or remittitur for
18 an abuse of discretion. Morga v. FedEx Ground Package Sys., Inc., 2018-NMCA-
19 039, ~ 8, 420 P.3d 586, cert. granted (No. S-1-SC-36918, June 4, 2018). ''The
18

1 [district] ~ourt abuses its discretion when its decision is contrary to l~gic and reason."
2 Id. (alteration, internal quotation marks, and citation omitted). Additionally, "[i]t is
3 for the [distriqt] court to detennine whether ... prejudicial miscondu~t requir[es] a
4 mistrial." Christopherson v. St. Vincent Hosp., 2016-NMCA-097, .~ 36, 384 P.3d
.. . . ~·; : ; ' 	5 1098 (internal quotation marks and cii;ation omitted). "A new.trial based .on col,lnsel
6 misconduct is warranted if the conduct was . improper, and it was reasonably
' . ~- ·, .. 7 calculated tQ cause and probably did cause the rendition of an improper judgtD.ent in
8 the case." Id , 37 (internal quotation marks and citation omitted). "The burden is
9 upo~ [the] party claiming error to demonstrate that his rights were prejudiced by the
10 claimed error." Id (internal quotation marks and citation omitted).
. : 4; '	
. . . .~. 	11 	(33) 	The issue arose in the following context At trial, through the testimony of
·' ··:·· 	.12 former FPD Lieutenant Ronald Hardy, Defense counsel soughtto introduce as a ·
· 13 record 	of regularly conducted activity FPD "Serg~ant Perez's 	memorandum·
14 documenting the verbal counseling and coachingPlaintiffre~ivedforunsatisfactory
15 performance and insubordination and intemper~te behavior hi response to· his March .
16 1(), 2011 memorandum. Plaintiff objected to the a,dmission·of Sergeant Perez's
17 memorandum on hearsay grounds.
18 {34J 	During the ensuing bench conference, in support of her objection,· Plaintiff's
.19 counsel argued that Sergeant Perez's memorandum was being "offered for the truth
19

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1 of (the] matter asserted, and they have to call in Perez to lay the foundation for it.
2 They haven't established any exception to the hearsay rule. And they're trying to get
· 3 around having to call Perez·because he sued [FPD].'' Defense co~sel responded,, "I
4 think ... the jury heard that. I think that is-l'm shocked that she would say that in
5 open court. I think the jury might have· heard that ... I'm very upset, Your Honor."
6 The district court ruled, without further argument, that the memorandum was
7 inadmissible hearsay without the testimony of Sergeant Perez.
8 {35} 	During the lunch recess, the district court revisited the issue with counsel.
9 When asked by the district court how she thought the statement "impact[ed] this
iO case[,]" defense counsel said, "Well it's not evidence. It is not evidence in the case
11 and I'm concerned that the jury is going to get-you ktiow, what they might speculate
12 to about that. I mean, I don'tkno~ that there's a cure for that I'm discussing it with
13 my clients."
i4 {36} 	The ·district court asked whether Defendants wanted a curative instruction to
. 15 be given to the jury. Defense counsel replied, "Well, obviously we don't want it
16 repeated," but that she did not know how to cure it. Plaintiffs counsel stated that she
17 did not believe that the jury heard it, and that she "certainly didn,.t intend to say it
18 loud_ enough for the jury to hear· it" The last word was froin defense counsel, who
19 stated "I just ... think coWISel needs ... to be more careful." The district court
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l thereafter ruled that reference to Perez suing FPD could not be made to the jury by
. 	i 	2 either party. Additionally, in denying Defendants' post-trial mo:tion for remittitur or .
3 in the alternative a new trial, the district court concluded that the "evidence presented
4 by ... Defendants to establish that the jury was so prejudiced by the statement of
5 Plaintiff's coun~el" regarding Sergeant Perez suing FPD,. "that a new trial is·required,
6 is insufficient[.]"
7' {37} 	Under these facts, we conclude that the district court did not .abuse its
8 discretion in denying Defendants' motion for remittitur or in the alternative a new
..,. '
	. :.; ··.: , ..., 	9 trial. Despite Defendants' failure to move for a mistrial, the district court took
........ · 	10 reasonable measures to minimize any prejudice to Defendants as a result of the
~. .t
. ' .	. 	• 	··'· r 	II 	comment. Specifically, the district court offered to give the jury a curative instruction
12 to disregard the comment, which Defendants declined, and ruled that neither party
1~ was permitted t~ comment to the jury or elicit evidence concerning Sergeant Perez's
. . .... . .. , \ j ~- .. ;· •. 	14 absence and lawsuit againstFPD. See NorwestBankofN.M., N.A. v. Chrysler Corp.,
15 	1999-NMCA.,-070, ,51 7 127 N.M. 397,981 P.2d 1215 (determining thatthe district
~ l ' •• J.. 	16 court did not abuse its discretion in a 'minivan crashworthiness case after certain .
. ·,' .-··. . . ·:·. ·. 	17 cross-examination by manufacturer and automobile dealership erroneo-psly implied
-· . -~- . ~. . ; 	18 that the driver and passengers had pursued other lawsuits against those defendants,
19 where the plaintiffs did not move for a mistrial and the district court gave an official
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1 admonishment to defense counsel and curative instruction to the jury). Accordingly,
2 we conclude that the distript court's denial of Defendants' post-trial motion was not
3- contrary to logic and reason and that Defendants are n<;>t entitled to remittitur or a new
4 trial.
5 CONCLUSION
6 {38} 	The jury's verdict and district court's post-trial rulings are affirmed.
7 {39~ 	IT IS SO ORDERED.
8
9
10 WECONCUR:
13 	f)..~
14 J. MILES HANISEE, Judge
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