June 17, 2010 – Art Bustos, as Personal Representative of the Estate of Marcos Leandro Baca, deceased, and Marcos Baca, Terri Baca, and Abel Baca, individually v. Hyndai Motor Company, Hyndai Motor America, and Borman Motor Company, No. 28,240

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OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ June 17, 2010

NO. 28,240

ART BUSTOS, as Personal Representative of
the Estate of MARCOS LEANDRO BACA,
deceased, and MARCOS BACA, TERRI
BACA, and ABEL BACA, individually,

Plaintiffs-A ppellees,
V.

HYUNDAI MOTOR COMPANY, HYUNDAT
MOTOR AMERICA, and BORMAN MOTOR
COMPANY,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
James A. Hall, District Judge

Gaddy C€ Jaramillo
David J. Jaramillo
Maria E. ‘Touchet
Albuquerque, NM

Watts Law Fim, L.L.P.
James H. Hada
Robert J. Patterson
Corpus Christi, TX

for Appellees

Prichard, Hawkins, McFarland & Young LLP
David M. Prichard
San Antonio, TX
Montgomery & Andrews, PA
Walter J. Melendres
Santa Fe, NM
Winston & Strawn LLP
Gene C. Schaerr
Geoffrey P. Eaton
Washington, DC
for Appellants
Keleher & McLeod, PA
Thomas C. Bird
Albuquerque, NM
for Amicus Curiae The Product Liability Advisory Council, Inc.
Lewis and Roca LLP
Thomas P. Gulley
Albuquerque, NM
for Amicus Curiae Association of Commerce and Industry

OPINION
BUSTAMANTE, Judge.
{1} 	Marcos Leandro Baca was killed in a rollover accident involving a Hyundai
automobile. Mr. Baca’s estate, parents, and brother (Plaintiffs) brought suit against
Hyundai Motor Company, Hyundai Motor America, and Borman Motor Company
(Defendants) in negligence, implied warranty, and strict products liability asserting
that the roof structure of the car was defectively designed. The jury found in favor of
Plaintiffs on all claims and awarded $4.2 million.
{2} 	Defendants appeal arguing that (1) the district court abused its discretion in
admitting expert testimony as to the design defect and enhanced injury, (2) Plaintiffs
failed to prove that a design defect existed, (3) Plaintiffs failed to prove the degree of
injury enhancement resulting from the alleged design defect, and (4) the district court
erred as a matter of law by failing to specifically instruct the jury that Plaintiffs were
required to prove the feasibility of a reasonable alternative design which could have
eliminated the alleged defect. We affirm the district court’s entry of judgment on the
jury verdict.
BACKGROUND
{3} 	The twenty-one-year-old Mr. Baca was riding in the right front passenger seat
of a 2002 Hyundai Accent when its driver lost control, causing the vehicle to leave the

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roadway and roll over three and one-half times before coming to rest on its roof.
When the driver lost control, the Accent was traveling at a speed of approximately
sixty-four miles per hour, but the car had slowed down to between thirty-two and
thirty-four miles per hour by the time it began to roll over.
{4} 	During the rollover, the roof over the passenger seat crushed downward and
inward. 	The roof rail dropped down vertically to the top of the passenger seat
headrest and horizontally such that approximately half of the headrest extended
outside the plane of the side window. By the time the Accent came to rest, the A-
pillar, which connects the front of the door frame along the windshield to the roof rail,
had crushed 10.9 inches and the B-pillar, which connects the back of the door frame
to the roof rail, had crushed 10.8 inches. The passenger door had also come open.
{5} 	With the vehicle upside down, Mr. Baca remained buckled into his safety belt
in the passenger seat. Mr. Baca’s head was outside the plane of the passenger side
window and atop a CD changer, which had become dislodged from the vehicle during
the rollover and was now laying on the ground immediately outside the passenger side
window. The roof above the driver’s side of the Accent was not as severely deformed,
and the driver was able to walk away from the accident.
{6} 	The Office of the New Mexico Medical Examiner found that Mr. Baca’s death
was caused by positional asphyxia. He was inverted with his body located in such a

3
way that the vehicle weighed down against his head and neck, and flexed his chin into
his chest. According to witnesses, Mr. Baca was stuck in this position.
{7} 	Plaintiffs relied on the testimony of two expert witnesses to establish first, the
existence of a design defect in the 2002 Hyundai Accent, and second, that the design
defect caused the injury enhancement of death. At trial, John Stilson, an automotive
and safety consultant, testified on behalf of Plaintiffs. 	Mr. Stilson examined the
subject vehicle and testified that, as a result of the roof crush in this accident, the
survival space within the Accent was reduced to below what would be necessary for
rollover protection.
{8} 	Joseph Burton, M.D., a forensic pathology and forensic medicine consultant,
also testified on behalf of Plaintiffs. 	Like Mr. Stilson, Dr. Burton examined the
subject vehicle. Dr. Burton explained that merely hanging upside down in the vehicle
would not have caused Mr. Baca to asphyxiate. 	However, Mr. Baca’s body was
forced into compression by the deformation to the Accent’s roof resulting in Mr.
Baca’s head being placed outside of the vehicle and on top of the CD changer. Mr.
Baca’s regular breathing was also impaired by compression of his rib cage that
prevented his diaphragm from functioning properly. Mr. Burton’s ultimate opinion
was that Mr. Baca died from positional asphyxiation caused by “the condition the
vehicle put his body in when it came to rest.”

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{9} 	On appeal, Defendants argue (1) that the testimony of Mr. Stilson and Dr.
Burton should not have been admitted; (2) that even if it were properly admitted, it
failed to carry Plaintiffs’ burden of showing a design defect that caused an enhanced
injury; and (3) even if it were sufficient to make such a showing, the jury was
improperly instructed on what it was required to find. We address each argument in
turn and affirm the judgment of the district court.
DISCUSSION
1. 	The District Court Did Not Abuse Its Discretion in Permitting the Expert
Testimony of Mr. Stilson and Dr. Burton
{10} 	Defendants argue that the testimony of Plaintiffs’ expert witnesses, Mr. Stilson
and Dr. Burton, should have been excluded based on reliability considerations under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its New
Mexico counterpart, State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). 	In
Alberico, the New Mexico Supreme Court adopted an approach, similar to that
established by the United States Supreme Court in Daubert, clarifying that Rule 11-
702 NMRA requires three prerequisites for admission of expert testimony: (1) the
expert must be qualified; (2) the scientific evidence must assist the trier of fact; and
(3) the expert may only testify to “scientific, technical or other specialized
knowledge.” Alberico, 116 N.M. at 166, 861 P.2d at 202 (internal quotation marks
and citation omitted). In addition, the Court cited favorably to Daubert for several

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non-determinative factors in applying Rule 11-702. Alberico, 116 N.M. at 166-67,
861 P.2d at 202.
{11} 	Here, Defendants do not challenge Mr. Stilson’s or Dr. Burton’s qualifications.
Defendants’ argument is that Mr. Stilson’s expert testimony was not helpful to the
jury and was unreliable because it was too generalized and not based on the specific
facts of this case. Defendants’ challenge to Dr. Burton relies entirely on the success
of their challenge to Mr. Stilson’s testimony: with Mr. Stilson’s testimony excluded,
they argue there would be no predicate showing of a design defect to support Dr.
Burton’s opinion as to causation.
{12} 	Plaintiffs point out that it is unclear whether Alberico applies to the testimony
of Mr. Stilson and Dr. Burton because New Mexico courts have limited Alberico to
expert witness testimony based on scientific knowledge. In the alternative, Plaintiffs
argue that, even if Alberico does apply, the district court did not abuse its discretion
in admitting these two expert witnesses. In order to fully address the issue, we briefly
review New Mexico’s law on the application of Alberico.
{13} 	The 	Alberico 	prerequisites 	for 	expert 	testimony 	are 	applied 	somewhat
differently by New Mexico courts than by federal courts applying Daubert. In Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999), the United States Supreme Court
clarified that its ruling in Daubert applied not only to expert testimony that was

6
scientific in nature, but to all “technical” or “other specialized” matters within the
scope of Rule 702. 	Kumho Tire Co., 526 U.S. at 146-47. 	New Mexico has not
incorporated the holding of Kumho Tire Co. into its law.
{14} 	In State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20, the New
Mexico Supreme Court limited the requirements of Daubert/Alberico to testimony
that requires scientific knowledge, stating that “application of the Daubert factors is
unwarranted in cases where expert testimony is based solely upon experience or
training.” 	Torres, 1999-NMSC-010, ¶ 43 (internal quotation marks and citation
omitted). The language in Torres was adopted from Compton v. Subaru of America,
Inc., 82 F.3d 1513, 1518 (10th Cir. 1996), which was subsequently overruled by
Kumho Tire Co. 	Even though Compton has been overruled, New Mexico has
continued to recognize Compton’s rationale—as adopted in Torres—that Alberico
does not extend to expert testimony based on non-scientific knowledge. See Banks
v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 19, 134 N.M. 421, 77 P.3d
1014 (stating that in Torres “we limited the requirements of Daubert/Alberico to
testimony that requires scientific knowledge”); State v. Lente, 2005-NMCA-111, ¶ 4,
138 N.M. 312, 119 P.3d 737 (recognizing that “New Mexico law requires only that
the trial court establish the reliability of scientific knowledge, and does not apply the
Daubert-Alberico standard to all expert testimony”).

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{15} 	Defendants submitted a pretrial motion and motions at the close of all evidence
arguing that Mr. Stilson’s and Dr. Burton’s testimony should be excluded under the
authority of Daubert/Alberico. Though it did not detail New Mexico’s application of
these cases, the district court ruled from the bench that the testimony of both Mr.
Stilson and Dr. Burton met the standards of Daubert/Alberico. 	We perceive the
district court’s remarks as an indication that it was applying a Kumho standard. With
respect to Defendants’ argument that Mr. Stilson’s testimony was too general to
satisfy Daubert/Alberico standards, the district court found it to be “perfectly
appropriate for an expert to take generalized princip[les] related to the amount of
crush in a vehicle[,] and then apply them to the issues here.” The court further stated
its finding that Mr. Stilson’s opinion could “tie to Dr. Burton’s opinion as to the cause
of death.” The district court ultimately denied Defendants’ motion to exclude these
witnesses. We conclude that the district court did not abuse its discretion in admitting
the testimony of Mr. Stilson and Dr. Burton.
{16} 	We do not address whether the district court was correct in applying
Daubert/Alberico/Kumho in this context. If it was in error doing so, the error was
harmless because the effect was merely to create a more stringent standard of
admission than may have otherwise been required. “In determining whether an expert
witness is competent or qualified to testify, ‘[t]he trial court has wide discretion . . .,

8
and the court’s determination of this question will not be disturbed on appeal, unless
there has been an abuse of this discretion.’” Lopez v. Reddy, 2005-NMCA-054, ¶ 14,
137 N.M. 554, 113 P.3d 377 (alteration in original) (omission in original) (citation
omitted). “The ruling will not be disturbed . . .[] unless it is manifestly wrong or the
trial court has applied wrong legal standards in the determination.” 	Id. (alteration
omitted) (omission in original) (internal quotation marks and citation omitted). In any
event, Defendants do not argue that a wrong legal standard was applied; they only
argue that the standard was misapplied.
{17} 	Defendants argue that the district court abused its discretion in finding that Mr.
Stilson’s testimony was (1) helpful to the jury; and (2) based on scientific, technical,
or other specialized knowledge because Mr. Stilson’s testimony was not anchored in
the specific facts of this rollover accident.
{18} 	A detailed review of Mr. Stilson’s testimony leads us to conclude that the
district court did not err and did not abuse its discretion. Mr. Stilson testified that he
inspected the vehicle involved in the accident four times and was involved in a “tear[-
]down” of the vehicle along with Hyundai representatives. 	Mr. Stilson personally
removed the interior decorative elements of the car and inspected the bare structural
elements in order to assess how they performed in the crash. The inspection revealed
that the A-pillar weld broke where it connected to the header panel on the roof.

9
Further, the header panel buckled and was pushed past the passenger seat.
{19} 	He also reviewed Hyundai’s materials on the vehicle, including pre-production
design information, testing protocols and results, and post-production informational
materials. Mr. Stilson reviewed all of the material produced by Hyundai in the course
of discovery in the case, including video and technical data from a static roof strength
test and from a rollover test conducted by Hyundai on other 2002 Accents similar to
that involved in this case. The rollover test created conditions similar to a thirty-mile-
per-hour crash. Mr. Stilson also reviewed and accepted Hyundai’s velocity analysis
which calculated the likely speed of the vehicle when it started its roll. The low range
calculation was 32.46 miles per hour, and the high range calculation was 34.43 miles
per hour.
{20} 	Mr. Stilson also obtained A and B pillars from another 2002 Hyundai Accent
as undamaged examples of the subject car. The exemplar A and B pillars were used
at trial as demonstrative exhibits. 	In addition, Mr. Stilson performed his own
“farrowing” [sic] analysis on the crashed vehicle in order to measure the amount of
damage to the roof in terms of the amount of deflection it suffered. 	Mr. Stilson
analyzed the amount of “rake” and “tumble home” designed into the crashed vehicle.
“Rake” is a measure of how much the A-pillar is “rotated rearward” from the vehicle;
“tumble home is the angle that the A-[p]illar is rotated inwards toward[] the vehicle.”

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The steepness of the angle affects the relative ability of the A-pillar to resist bending
in a crash.
{21} 	Mr. Stilson also noted that the A-pillar on the Hyundai Accent was designed to
be hollow. A hollow A-pillar can be filled with foam which can add ten to twenty
percent structural strength to the pillar.
{22} 	And, Mr. Stilson noted that Hyundai did not conduct a failure mode effect
analysis (FMEA) on the roof design of the Accent. Mr. Stilson testified that FMEA
procedures are standard procedures in the automobile industry and have been so since
the 1960s; they are “automatic” as part of design.
{23} 	After review of the material and information summarized above, Mr. Stilson
opined that:
A. 	The prototype vehicles tested by Hyundai in the rollover test conducted
by Hyundai showed that the occupant survival space was compromised, and a “failure
mode analysis should have been instigated.”
B. 	“[T]his particular roof lacks adequate strength to provide occupant
protection under the conditions of this low speed rollover.”
C. 	The steep rake of the A-pillar made it easier to bend.
D. 	Hyundai did not incorporate structural foam into the vehicle, and doing
so “would have increased at about a 10[-]20 percent level of strength added to the roof

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to resist crush into the occupant survival space.”
E. 	Mr. Baca’s “survival space was reduced to way below what would be
considered necessary to provide rollover protection in a rollover accident such as the
one that occurred in this case. It[] crushed way below the survival space, what we call
normal survival space.”
F. 	“[T]he subject Hyundai 2002 Accent roof design is defective and
unreasonably dangerous because it lacks adequate strength or crush resistance to
provide reasonable protection in this particular low speed rollover to protect the
occupant from a crash from this viewpoint.”
{24} 	Mr. 	Stilson’s 	testimony 	specifically 	related 	to 	his 	investigation 	of 	the
performance of the Accent’s roof in this accident. 	Mr. Stilson explained his
understanding of vehicle design from specialized knowledge gained through education
and employment. Although Mr. Stilson did not perform his own separate tests on a
2002 Hyundai Accent, his testimony was based in part on his review of rollover
testing done by Hyundai on this vehicle, as well as the results of his own testing on
another vehicle that employed an integrated roll cage. 	The similarity between the
observed speed of the vehicle during Hyundai’s rollover test (thirty miles per hour)
is sufficiently close to the speed in the accident to meet Defendants’ assertion that Mr.
Stilson’s opinion was not reliable because he did not calculate the actual forces at

12
work in the crash.
{25} 	Under these facts, we agree with the district court that Mr. Stilson’s testimony
warranted admission. As previously noted, the district court had broad discretion in
determining Mr. Stilson’s qualifications to testify, and it was not an abuse of
discretion to deny Defendants’ motion to exclude his testimony.
{26} 	With respect to Dr. Burton, Defendants’ sole argument on appeal was that,
without the predicates as to design defect established by Mr. Stilson’s testimony, Dr.
Burton’s testimony would not have been proper. Having concluded that Mr. Stilson’s
testimony was properly admitted, Defendants’ challenge to the admission of Dr.
Burton’s testimony also fails.
2. 	Substantial Evidence Supports the Jury’s Finding That a Design Defect
Caused an Enhanced Injury
{27} 	Defendants argue that the evidence at trial was insufficient to prove the
existence of a design defect which proximately caused an enhanced injury and that the
district court erred in failing to grant Defendants’ renewed motion for judgment as a
matter of law. We will not disturb the district court’s denial of Defendants’ renewed
motion for judgment as a matter of law unless the jury’s verdict was unsupported by
substantial evidence. Page & Wirtz Constr. Co. v. Solomon, 110 N.M. 206, 209, 794
P.2d 349, 352 (1990). 	“Substantial evidence is such relevant evidence that a
reasonable mind would find adequate to support a conclusion.” 	Landavazo v.

13
Sanchez, 111 N.M. 137, 138, 802 P.2d 1283, 1284 (1990). “In accordance with the
standard of review, when considering a claim of insufficiency of the evidence, the
appellate court . . . indulges all reasonable inferences in support of the prevailing
party.” Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶
12, 123 N.M. 329, 940 P.2d 177 (filed 1996). “We will affirm the jury’s verdict if
there is evidence to support it.” Couch v. Astec Indus., Inc., 2002-NMCA-084, ¶ 28,
132 N.M. 631, 53 P.3d 398.
{28} 	An automobile manufacturer may be held liable as a successive tortfeasor for
any enhanced injury proximately caused by a design defect in its product. Norwest
Bank N.M., N.A. v. Chrysler Corp., 1999-NMCA-070, ¶ 11, 127 N.M. 397, 981 P.2d
1215. An enhanced injury is that portion of damage or injury caused by the design
defect over and above that which would have resulted from the original accident had
the vehicle not been defective. Duran v. Gen. Motors Corp., 101 N.M. 742, 749-50,
688 P.2d 779, 786-87 (Ct. App. 1983), overruled on other grounds by Brooks v. Beech
Aircraft Corp., 120 N.M. 372, 902 P.2d 54 (1995).
{29} 	To establish the elements of an enhanced injury against Defendants, Plaintiffs
were required to prove: (1) the existence of an enhanced injury, and (2) the degree of
enhancement. Couch, 2002-NMCA-084, ¶ 35. “The degree of enhancement may be
established by proof of what injuries, if any, would have resulted had an alternative,

14
safer design been used.” 	Id. 	Defendants argue the first element was not satisfied
because Mr. Stilson’s testimony was insufficient to establish that the Accent’s roof
design was defective and, as a result, Dr. Burton’s testimony could not establish that
an enhanced injury resulted from any design defect. 	With respect to the second
element, Defendants argue that Plaintiffs failed to establish the degree of injury
enhancement by failing to prove what injuries would have resulted from a non-
defective design. 	Defendants’ final argument is that Plaintiffs offered insufficient
evidence to prove that a defect in the Accent’s door latch caused any injury.
A. 	Mr. Stilson’s Trial Testimony Was Sufficient to Support Jury Findings
That the Accent’s Roof Was Defective in Design
{30} 	Defendants argue that in order to support any finding of a design defect Mr.
Stilson was required to testify that “but for a defective design, the Accent’s roof
would have crushed to a maximum of three inches,” but that he never did. Defendants
assert that such a conclusion would have required specific crush- resistance testing of
the Accent by Mr. Stilson, which was never done. Defendants also assert that, absent
an express statement by Mr. Stilson that the roof deflection in the subject vehicle
could have been limited to three inches, Dr. Burton’s opinion as to enhanced injury
was without foundation. We disagree that such a precise statement or opinion was
required of Mr. Stilson to support the jury’s finding of design defect and enhanced
injury. The jury could reasonably infer from the testimony in the record that this roof

15
could and should have been designed to maintain a survivable space for passengers
in the event of a rollover crash of the kind seen in this accident. See Las Cruces Prof’l
Fire Fighters, 1997-NMCA-044, ¶ 12 (stating that “the appellate court . . . indulges
all reasonable inferences in support of the prevailing party”); cf. Hansler v. Bass, 106
N.M. 382, 386, 743 P.2d 1031, 1035 (Ct. App. 1987) (stating that while a party
opposing summary judgment is entitled to have reasonable inferences drawn from the
facts, stacking of inference upon inference is not permitted).
{31} 	Mr. Stilson’s ultimate opinion was that the “2002 Accent roof design is
defective and unreasonably dangerous because it lacks adequate strength or crush
resistance to provide reasonable protection in this particular low speed rollover.” The
record reflects that Mr. Stilson detailed his experience in roof testing and the steps he
used in arriving at this opinion. He testified that he had tested several reinforced roofs
for their crush resistance. Specifically, Mr. Stilson testified that in his experience in
performing drop tests where vehicles were dropped on their roofs from heights of up
to three feet, use of an integrated roll cage reduced roof crush to three inches.
Furthermore, he stated that use of alternatives such as structural foam in the roof’s
support pillars, general reinforcement of these pillars, or use of an integrated roll cage
was feasible in the 2002 Hyundai Accent and could have been used to “provide
adequate rollover protection under the conditions of this rollover.”

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{32} 	Mr. Stilson examined the subject vehicle and testified that the performance of
the vehicle’s roof in “this particular [accident]” was substandard. The roof pillars had
deformed after the accident by as much as 10.9 inches inward and downward, and the
passenger seat headrest was outside the vehicle’s side plane. 	He opined that, as a
result of the roof crush in this case, Mr. Baca’s survival space was reduced to “way
below what would be considered necessary to provide rollover protection,” or “normal
survival space.”
{33} 	Based on Mr. Stilsons’s testimony, the jury could have found that the Accent’s
roof was defective in that it failed to provide adequate survival space. Such a finding
would be sufficient to support an opinion by Dr. Burton that Mr. Baca’s death was
caused by the inadequate survival space. Assuming that Dr. Burton’s opinion required
a predicate opinion by Mr. Stilson that roof deflection in this car could have been
limited to three inches and indulging all inferences in favor of the verdict, it would
have been reasonable for the jury to infer as much from the totality of Mr. Stilson’s
testimony, in particular his testimony about the performance of roll cages in other
vehicles, and that a roll cage would have been feasible in the subject vehicle.
Defendants have not demonstrated how such inferences would be improper.
{34} 	On appeal, Defendants put much weight behind the argument that Mr. Stilson’s
roof-testing knowledge was from static drop tests performed on vehicles other than

17
a 2002 Hyundai Accent and that such tests are not analogous to the rollover at issue
here. 	However, such arguments only go to the weight of the evidence, which is
beyond the scope of our review. See Maestas v. Martinez, 107 N.M. 91, 93, 752 P.2d
1107, 1109 (Ct. App. 1988) (stating that a reviewing court may not assess the weight
of evidence except “[w]here an issue to be determined rests upon the interpretation of
documentary evidence”). 	We also note that in cross-examining Mr. Stilson,
Defendants never brought this issue to the jury’s attention. Instead, the large majority
of the cross-examination focused on Mr. Stilson’s experience and prior consultations
as an expert witness and on the Accent’s door latch.
B. 	Dr. Burton’s Testimony Was Sufficient to Establish That a Design Defect
Caused Mr. Baca’s Enhanced Injury and the Degree of Enhancement
{35} 	After hearing Mr. Stilson’s opinion, the jury heard the testimony of Dr. Burton.
He testified that with a non-deformed roof structure, a survivor of a rollover could
hang upside down in a vehicle almost indefinitely without asphyxiating. Dr. Burton
also showed the jury a scaled computer model that depicted a scenario without any
roof crush. According to the model, under this scenario a survivor of a rollover would
merely be suspended upside down. Dr. Burton’s model also depicted the scene as it
existed with Mr. Baca’s head outside of the car on the CD changer, and a scenario
showing the actual amount of roof deformation after the accident, but with Mr. Baca’s
head staying inside the vehicle. 	Based on the model, Dr. Burton testified that the

18
amount of compression suffered by Mr. Baca would not have changed had his head
remained in the car because it would have been pressing against the roof rail instead
of the CD changer. He also testified that the CD changer did not play a role in causing
Mr. Baca’s death because it made less than a two inch difference in creating the
compression and that if the CD changer was not there his head would have simply
settled to the ground.
{36} 	Mr. Baca suffered no fractures to his skull or neck, and although he did suffer
a large scalp laceration, a severe injury to his right ear, and several superficial
contusions and abrasions, the medical examiner found that none of these injuries
would have caused his death. Dr. Burton testified that as a result of the roof crush in
this case, Mr. Baca’s body was compressed into an inadequate survival space. The
distance between the passenger seat cushion and the roof had been reduced to
approximately twenty-seven inches, whereas Mr. Baca’s upright sitting height
required approximately thirty-five inches. 	Given the body’s position and weight
distribution, Mr. Baca’s airway was pinched off in two places, his diaphragm could
not function properly, and his body could not get enough oxygen. 	According to
witnesses, he was actually stuck in this compressed position.
{37} 	Dr. Burton also showed the jury a demonstration of himself hanging upside
down in a vehicle while the cabin space was incrementally decreased. He explained

19
that by the time the cabin space was reduced to thirty-seven inches from seat cushion
to roof, his neck and chin were so severely bent that he could not breathe, and that in
this case, the survival space within the Accent was a full ten inches less.
{38} 	Defendants rely heavily on Dr. Burton’s testimony during cross-examination
that, if one “could reduce the [Accent’s] roof deformation . . . to about three inches[,]
. . . there’s no reason for [Mr. Baca] to die from mechanical asphyxia[tion].” Pointing
back to Mr. Stilson’s failure to expressly state that a particular design alternative
would have reduced roof crush to three inches in this car, Defendants argue that
Plaintiffs’ claim fails for lack of causation. Defendants’ argument assumes that the
only interpretation of Dr. Burton’s testimony is that any deflection of more than three
inches would have been necessarily fatal. We disagree. Dr. Burton’s testimony does
not lend itself to such absolute precision. He did not say, and it cannot be reasonably
inferred that “three inches is okay, but four inches is fatal.” 	The jury could have
interpreted it to mean that a three-inch crush would have clearly posed no danger, but
given the way mechanical asphyxiation occurs, there was a gradation of danger up to
the ten-inch crush here, which was necessarily fatal. As we previously concluded, Mr.
Stilson’s general testimony that the Accent’s roof was defective because it failed to
provide adequate or normal survival space was a reasonable basis for Dr. Burton’s
testimony. In any event, as we have explained above, to the extent that Dr. Burton’s

20
testimony required an opinion that a three-inch maximum crush standard was possible
in the subject vehicle through use of an integrated roll cage, such conclusion was
reasonably inferred from Mr. Stilson’s testimony.
{39} 	Given that none of Mr. Baca’s other injuries were life threatening, the evidence
is also adequate to support the jury’s finding of an enhanced injury—death—from
positional asphyxiation, over and above the lacerations, contusions, and abrasions
suffered by Mr. Baca as a result of the initial rollover and that death would not have
resulted “had an alternative, safer design been used” that preserved adequate survival
space. Couch, 2002-NMCA-084, ¶ 35.
{40} 	Defendants cite a 1976 case from the Third Circuit and a Delaware case in
support of their arguments that Plaintiffs failed as a matter of law to prove the degree
of enhancement in this case. 	However, neither of those cases are helpful here. 	In
Huddell v. Levin, 537 F.2d 726, 732 (3rd Cir. 1976), the driver of a 1970 Chevy Nova
died as a result of a collision. The driver was at a complete stop when he was rear-
ended at a speed of between fifty-five and sixty miles per hour. 	The theory of
causation was that as a result of the collision the decedent’s head was thrust backward
and impacted a relatively sharp metal edge within the head restraint that caused a skull
fracture and damage to the brain. 	Id. at 735. 	The Third Circuit Court of Appeals
ruled that the plaintiff’s case failed as a matter of law because there was no evidence

21
of what injuries may have occurred if the decedent’s head had instead struck a non-
defective head restraint with the same amount of force as generated by an up to sixty
mile per hour rear-end collision. Id. at 738.
{41} 	Mazda Motor Corp. v. Lindahl, 706 A.2d 526 (Del. 1998), presented a similar
issue under different facts. In that case, the driver of a Mazda 626 died as the result
of a single-vehicle crash in which the car “plunged down an embankment, struck the
side of a ditch, flipped end over end and tumbled through the air, striking the ground
several times.” 	Id. at 528-29. 	The facts established that the vehicle’s driver was
intoxicated and traveling at approximately fifty-six miles per hour at the time of the
accident. 	Id. at 529. 	The theory of causation was that the Mazda’s seats were
defectively designed to collapse in response to the force of a body thrust against them
that allowed the decedent to slide up the seat back unrestrained by the seat belt and to
be partially ejected from the vehicle. Id. However, the plaintiff in that case provided
no evidence connecting the seat collapse to the known causes of death—abdominal
injuries and head trauma—and no evidence as to whether the decedent would have
survived the physiological forces on his body even if an alternative safer seat would
have been used. Id. at 533-34.
{42} 	In both Huddell and Lindahl, the facts were such that the victims died as the
result of the extreme physiological forces affecting their bodies. 	The unanswered

22
question with respect to causation in each case was how those physiological forces
would have affected them even if some alternative safety feature had been used. It
would follow that failure of such proof would cast doubt on the survivability of either
accident under any circumstance.
{43} 	Defendants never argued or sought to prove that the physiological forces from
the accident were so severe that Mr. Baca could not have survived even if the cabin
of the Accent had preserved adequate survival space for him. Defendants did present
testimony that Mr. Baca would have died in any event if he were suspended upside
down in an unconscious state for as long as he was in the vehicle after the crash.
Defendants did not present any testimony that Mr. Baca would necessarily have been
rendered unconscious even if the roof of the car had not crushed as much as it did. In
contrast, Plaintiffs presented evidence that, had adequate survival space been
provided, Mr. Baca would have suffered no life threatening injuries.
{44} 	These different scenarios presented by the testimony present a classic question
for the jury to decide. The jury found that the design of the car was defective, that
Defendants were negligent, and that the defect and negligence were the cause of
“injury or damage to Plaintiff.” The jury further determined that “the defect in the
2002 Hyundai Accent or the negligence of Hyundai cause[d] an injury that is distinct
from any separate injury caused by the rollover accident.”

23
{45} 	The facts of this case demonstrate that this accident was survivable: the driver
of the Accent walked away. This evidence suggests that the degree of enhancement
in this case is demonstrated by the fatality itself. The jury verdict comports with this
view of the evidence. 	Plaintiffs were not required to engage in speculation or
conjecture as to how Mr. Baca’s non-life threatening injuries may have been different
if, for example, an integrated roll cage had been used in the subject vehicle. 	See
Lindahl, 	706 	A.2d 	at 	532 	(recognizing 	the 	impossible 	burden 	of 	separating
hypothetical injuries which never occurred from the total actual injuries in a crash).
{46} 	Defendants also argue that Plaintiffs were required to prove that a design defect
in the passenger-side door latch directly or indirectly caused Mr. Baca’s death. The
issue relating to the door latch was developed below through Mr. Stilson, who
explained his opinion that the Accent’s door came open during the rollover as the
result of a defect. However, having found sufficient evidence to support a conclusion
that a design defect in the roof structure alone caused the enhanced injury of death, we
need not address whether Plaintiffs adequately proved that the door latch was also
defective. In any event, Dr. Burton’s testimony was that, with respect to the amount
of survival space available after the accident, it made no difference whether Mr.
Baca’s body would have remained inside the vehicle because the roof rail had
collapsed down to the headrest.

1In this regard the “theory of the case” instruction was similarly general:
To establish the claim of a defective product on part of Defendants
. . ., . . . Plaintiffs have the burden of proving that the 2002 Hyundai
Accent was defective because it presented an unreasonable risk of injury
during this accident.
To establish the claim of breach of implied warranty on the part
of Defendants . . ., . . . Plaintiffs have the burden of proving the
following contentions: (1) . . . Defendants were suppliers who regularly
dealt in products of the kind that they were selling or held themselves out
as having special knowledge or skill concerning the product; and (2) . .
. product was defective and not fit for the ordinary purposes for which
such product is used.
To establish the claim of negligence on the part of the Defendants,
Plaintiffs have the burden of proving that the Defendants failed to	13
possess 	or 	apply 	the 	knowledge 	available 	to 	reasonable 	vehicle	14
24
C. 	It Was Not Reversible Error to Allow the Jury to Hear Evidence on a
Potential Alternative Theory of Liability Relating to the Accent’s Door
Latch
{47} 	Defendants finally argue that the discussion about the door latch should have
never been presented to the jury because it was prejudicial. Assuming that the issue
of a defective door latch should not have gone to the jury, we see no reversible error.
The jury here was not requested to find whether the roof or doors specifically were
defective or how Defendants 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. 1

manufacturers to avoid foreseeable risks of injury in connection with the
design, testing and/or distribution of the 2002 Hyundai Accent.
25
{48} 	A general verdict may be affirmed under any theory supported by evidence
unless an erroneous jury instruction was given. Salinas v. John Deere Co., 103 N.M.
336, 341, 707 P.2d 27, 32 (Ct. App. 1984). In Salinas, the plaintiff was injured when
the chain on a corn harvester caught his leg while he was removing “down corn” from
the front of the machine. 	Id. at 338, 707 P.2d at 29. 	The plaintiff presented three
theories of product defect that could have resulted in liability of the manufacturer of
the harvester; the third of which was that the inclusion of a “corn saver” on the front
of the harvester would have made it safer by requiring it to make less frequent stops
for the removal of “down corn.” Id. at 339, 341, 707 P.2d at 30, 32. On appeal, the
manufacturer argued that instructing the jury on all three theories of defect was
erroneous because there was insufficient evidence to support the third theory. Id. at
341, 707 P.2d at 32. We concluded that the jury could have reasonably found that the
harvester lacked an available device such as a corn saver, which would have made it
safer for its intended use, and that the plaintiff was entitled to rely on circumstantial
evidence that the absence of such a device created an unreasonable risk of injury. Id.
Thus, we affirmed the district court’s entry of judgment in favor of the plaintiff
concluding that instructing the jury on all three theories was not erroneous even

26
though it was unclear under the general verdict which theory the jury relied upon. Id.
at 341-42, 707 P.2d at 32-33.
{49} 	This case presents an even clearer circumstance of harmless error. The “theory
of the case” instruction given to the jury does not present any specific theories of
product defect or negligence tied to the roof of the car or the door. The nature of any
actionable defect and/or negligence was left to the jury to decide based on 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 Mr. Baca’s injuries, we
assume the jury did not rely on the door for its finding of product defect and
negligence.
3. 	The Jury Was Properly Instructed
{50} 	Acknowledging that no case to date has done so in New Mexico, Defendants
argue that we should adopt the Restatement (Third) of Torts and require, as an element
of the tort, a specific showing of a reasonable alternative design in strict products
liability design defect cases. 	Based on this argument, Defendants assert that the
district court erred in refusing to give the following jury instruction:
A product is defective in design when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and

27
the omission of the alternative design renders the product not reasonably
safe.
. . . .
The test is whether a reasonable alternative design would, at
reasonable cost, have reduced the foreseeable harm posed by the product
and if so, whether the omission of the alternative design by the seller
rendered the product not reasonably safe.
Defendants assert that this instruction more accurately describes the “risk-benefit”
approach to strict products liability already embedded in New Mexico law; making
“explicit what is already implicitly required.”
{51} 	In Brooks, our Supreme Court examined whether so-called crash worthiness
cases involving theories of inadequate or improper design could sound in strict
product liability as well as negligence. Overruling Duran, in this regard, the Court
ruled that strict products theories were an appropriate avenue of potential liability.
Brooks, 120 N.M. at 373-74, 902 P.2d at 55-56. In reaching its decision, the Court
conducted a thorough review of the policies underlying products liability as a cause
of action in general. Id. at 375-77. It thus examined whether those policies would,
on balance, be furthered in the context of “design-defect claims” and found that they
would. Id. at 377-79.
{52} 	In the course of this discussion, the Court also reviewed New Mexico’s
requirements for proof of an actionable product defect. 	The Court framed its
discussion in light of its then-current product liability jury instructions, in particular

28
UJI 13-1407 NMRA. Id. at 379, 902 P.2d at 61. UJI 13-1407 remains unaltered in
substance and is the definitional instruction given to the jury in this case. Pursuant to
Brooks, we conclude that Defendants’ proposed jury instruction was properly denied
because it is in conflict with established law and because the instruction given
adequately and correctly conveyed the applicable legal standard.
{53} 	UJI 13-1407 provides:
An unreasonable risk of injury is a risk which a reasonably
prudent 	person 	having 	full 	knowledge 	of 	the 	risk 	would 	find
unacceptable. 	This 	means 	that 	a 	product 	does 	not 	present 	an
unreasonable risk of injury simply because it is possible to be harmed by
it.
[The design of a product need not necessarily adopt features which
represent the ultimate in safety. 	You should consider the ability to
eliminate the risk without seriously impairing the usefulness of the
product or making it unduly expensive.]
Under 	products 	liability 	law, 	you 	are 	not 	to 	consider 	the
reasonableness of acts or omissions of the supplier. You are to look at
the product itself and consider only the risks of harm from its condition
or from the manner of its use at the time of the injury. [The question for
you is whether the product was defective, even though the supplier could
not have known of such risks at the time of supplying the product.]
{54} 	Under New Mexico law, the existence of a reasonable alternative design is a
relevant consideration by a jury but, contrary to Defendants’ argument, a specific
finding on this issue is not required. Morales v. E.D. Etnyre & Co., 382 F. Supp. 2d
1278, 1284 (D.N.M. 2005). In Brooks, the New Mexico Supreme Court made clear

29
that a “defect giving rise to strict products liability is not measured by comparison
with a prototype.” 120 N.M. at 379, 902 P.2d at 61. The Court specifically declined
to narrowly define a defect in a strict products liability case in terms of a “reasonable
alternative.” Id. Instead, the Court favored what it termed the “unreasonable-risk-of-
injury” test found in UJI 13-1407 that would allow “argument under any rational
theory of defect.” Brooks, 120 N.M. at 379, 902 P.2d at 61. While a jury is required
to make risk-benefit calculations, consideration of alternative designs is but one of
several risk-benefit considerations that a jury may balance in determining whether a
product created an unreasonable risk of injury. The Court favorably noted a list of
seven risk-benefit considerations found in the Committee Comment for UJI 13-1407:
(1) the usefulness and desirability of the product; (2) the availability of
other and safer products to meet the same need; (3) the likelihood of
injury and its probable seriousness, i.e., “risk”; (4) the obviousness of the
danger; (5) common knowledge and normal public expectation of the
danger (particularly for established products); (6) the avoidability of
injury by care in use of the product (including the effect of instructions
or warnings); and (7) the ability to eliminate the danger without seriously
impairing the usefulness of the product or making it unduly expensive.
Brooks, 120 N.M. at 379-80 n.2, 902 P.2d at 61-62 n.2. The seventh consideration
most directly addresses what a jury may consider with respect to alternative design,
and this language is included in the actual jury instruction as something the jury
“should consider.” The jury in this case was instructed accordingly. Thus, the jury
instructions proposed by Defendants were properly denied because they misstated the

30
test for a design defect by focusing the jury too narrowly on a reasonable alternative
design. To the extent that such considerations should be made by the jury, UJI 13-
1407 supplies the proper analysis.
{55} 	We note that in 2009 the New Mexico Supreme Court adopted a revision to UJI
13-1407’s companion instruction, UJI 13-1406 NMRA (2009), and in doing so
reaffirmed in a use note that “UJI 13-1407[] must be used in every strict products
liability case based upon Restatement (Second) of Torts § 402A.” UJI 13-1406 (use
note); see Supreme Court Order No. 09-8300-011, effective May 15, 2009. Given that
our Supreme Court specifically addressed the relevant language of UJI 13-1407 in
Brooks, this Court is without authority to amend this jury instruction in favor of the
conflicting instruction proposed by Defendants. See State v. Parish, 118 N.M. 39, 47,
878 P.2d 988, 996 (1994) (stating that the Court of Appeals may “amend, modify, or
abolish” uniform jury instructions only when they have not been specifically
addressed by the Supreme Court on appeal (internal quotation marks omitted)).
{56} 	Defendants argue that, instead of relying on the older case of Brooks, this Court
should adopt its rationale from Morales. The court in Morales reasoned that since
New Mexico courts had previously cited favorably to other sections of the
Restatement (Third) of Torts on strict products liability law, it was “fair to say that .
. . the Restatement (Third) accurately reflect[s] New Mexico’s strict products liability

31
law[,]” and that if presented with the question, the New Mexico Supreme Court
“would most likely adopt the Restatement (Third).” 	Morales, 382 F. Supp. 2d at
1282-83. 	We need not forecast the accuracy of the Morales prediction in order to
affirm the district court’s decision in this case. 	Brooks had already recognized that
New Mexico’s existing law, at least to some degree, applies the risk-utility
considerations advocated by the Restatement (Third). See Brooks, 120 N.M. at 380,
902 P.2d at 62 (stating that the existing jury instruction allows “proof and argument
on all of the factors suggested by the Restatement (Third) of Torts as relevant in
determining whether the omission of a reasonable alternative gave rise to an
unreasonable risk of injury”).
{57} 	Furthermore, in Morales, the court recognized—we think consistently with
Brooks—that to the extent that evidence of an alternative design is required, New
Mexico courts do not require a “rigid showing in the plaintiff’s prima facie case.”
Morales, 382 F. Supp. 2d at 1284. The court in Morales appeared more concerned
with the idea that “a plaintiff could come to court and merely criticize a product,” and
in that context the court stated its belief that “New Mexico law required the plaintiff
to propose an alternative design.” Id. at 1283-84. As previously noted, Plaintiffs in
this case did more than merely criticize the design of the Accent’s roof structure.
They identified alternatives that could have been implemented to improve its

32
performance 	in 	a 	rollover. 	This 	evidence 	was 	admitted 	as 	relevant 	to 	the
determination of an enhanced injury. See Couch, 2002-NMCA-084, ¶ 35 (stating that
“enhancement may be established by proof of what injuries, if any, would have
resulted had an alternative, safer design been used”). Thus, the concern identified in
Morales does not exist in this case. The district court properly declined to give the
additional jury instruction proposed by Defendants below.
CONCLUSION
{58} 	For the foregoing reasons, we affirm the judgment of the district court.
{59} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

LINDA M. VANZI, Judge

33