October 02, 2012 – Concepcion and Rosario Acosta, et al. v. Shell Western Exploration and Production, Inc. and Shell Oil Company, No. 29,502

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Correction Page: E Acosta v Shell Western, No. 29,502 (GBuCc) Filed Oct. 2, 2012, Cover Page 1, moved lines 23 to
24 to Cover Page 2, lines 3-5

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 2, 2012

NO. 29,502

CONCEPCION and ROSARIO ACOSTA,
et al.,

Plaintiffs/Intervenors-A ppellants,
V.

SHELL WESTERN EXPLORATION
and PRODUCTION, INC.
and SHELL OIL COMPANY,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Freddie J. Romero, District Judge

Girardi & Keese
David R. Lira
Los Angeles, CA

Niddrie, Fish & Buchanan
Martin N. Buchanan
San Diego, CA

Correction Page: E Acosta v. Shell Western, No. 29,502 (GBuCc) Filed Oct. 2, 2012, Cover Page 2, added lines 6-8
and lines 14-19
Tucker Law Firm, P.C.
Steven L. Tucker
Santa Fe, NM
Heidel, Samberson, Newell, Cox & McMahon
Michael Newell
Lovington, NM
for Appellants
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Jocelyn C. Drennan
Albuquerque, NM
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Marte D. Lightstone
Albuquerque, NM
Hayes & Boone, L.L.P.
Michael J. Mazzone
Houston, Texas
for Appellees

OPINION
GARCIA, Judge.
{1} 	In this toxic tort case, the district court granted Defendants’ motion to exclude
the opinion testimony of Plaintiffs’ expert witness as to causation for the Plaintiffs’
lupus and autoimmune medical conditions. 	As a result, the district court granted
partial summary judgment in favor of Defendants on Plaintiffs’ claims relating to their
lupus and other autoimmune disorders. Plaintiffs’ remaining claims that relied upon
other evidence and expert testimony survived summary judgment and were allowed
to proceed to trial. 	After the jury returned a verdict in favor of Defendants on
Plaintiffs’ remaining claims, Plaintiffs filed a motion for new trial based on juror
misconduct and juror bias. The district court denied the motion for a new trial and
entered a final judgment in favor of Defendants. This appeal followed. We affirm.
BACKGROUND
{2} 	This is an action brought by over 200 individuals asserting either personal
injury claims, property damage claims, or both, against Shell Western Exploration and
Production, Inc. and Shell Oil Company, (collectively, Shell). Plaintiffs’ allege that
Shell purposely or negligently deposited and left various toxic petrochemicals in the
ground where the Westgate neighborhood (Westgate) is presently located in Hobbs,
New Mexico. The nine named Plaintiffs in this case were selected for an initial trial.

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Plaintiffs asserted claims for negligence, strict liability, nuisance, and trespass.
{3} 	Plaintiffs resided in Westgate at varying times and for varying lengths of time
over more than twenty years. Westgate is situated within an active oilfield. Oil and
gas operations had been conducted in the area known as the Grimes lease since the
1920’s, and development of the area for housing began in the 1970’s. From 1946 to
1993, Shell maintained a tank battery on the Grimes lease and used the tank battery
to store crude oil and saltwater produced from wells on the lease. Just east of the tank
battery, Shell used an unlined storage pit (the Tasker pit) to dispose of oilfield waste.
The Grimes battery was dismantled and removed after it was decommissioned. In
1997, the soil where the battery tanks previously stood was found to be contaminated
with hydrocarbons. In addition to the soil contamination, hydrocarbon contamination
was found in the water table.
{4} 	Not long after contamination was detected at the former Grimes battery site, a
developer constructing new houses in Westgate discovered a layer of asphalt-like
hydrocarbons beneath the ground. It extended across the properties on both sides of
Tasker Road. Additional hydrocarbons were found beneath the asphaltic layer. An
investigation revealed that the contaminated land, now known as Tasker road and the
adjacent properties, used to be the Tasker pit.
DISCUSSION
{5} 	This was a complex toxic tort case that involved an extraordinary volume of

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briefs, affidavits, expert witness reports, case studies, and scientific information. The
scientific aspects of this case were critical to this litigation and were addressed at
several stages during the pretrial process. This pretrial analysis required the district
court to devote an extensive amount of time and attention to complex scientific
evidence, including numerous research studies addressing potentially toxic chemicals.
The district court did an admirable job controlling and managing the numerous
scientific aspects of the case before trial was convened. 	These efforts resulted in
several dispositive rulings prior to trial. In their first argument on appeal, Plaintiffs
make two challenges: 	first to the district court’s pretrial rulings excluding Dr.
Dahlgren’s causation opinions as well as his epidemiological study on lupus and other
immune conditions, and second to the resulting grant of summary judgment on these
claims. 	We begin with the first argument. We will also address Plaintiffs’ second
argument regarding alleged jury misconduct. 	The additional facts and procedural
history pertinent to each argument will be included in the appropriate discussion
below.
I. 	The Partial Grant of Summary Judgment
{6} 	The initial issue on appeal is whether Shell was entitled to partial summary
judgment on Plaintiffs’ claims relating to lupus and other autoimmune disorders. In
deciding this question, we must determine whether the district court abused its
discretion when it excluded Dr. Dahlgren’s expert opinions under Daubert v. Merrell

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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).
{7} 	Plaintiffs alleged that their exposure to contamination from the Tasker pit either
caused or aggravated their lupus and other autoimmune medical conditions, as well
as their respiratory, neurological, and psychiatric injuries. Plaintiffs sought to have
Dr. Dahlgren testify as their expert witness regarding causation. Plaintiffs could not
establish a prima facie case regarding claims that involved lupus and other
autoimmune medical conditions without Dr. Dahlgren’s testimony. 	Of particular
import to Plaintiffs’ appeal, Dr. Dahlgren was prepared to testify that, to a reasonable
degree of medical probability, the various autoimmune conditions Plaintiffs suffered,
including lupus, were caused by Plaintiffs’ exposure to a mixture of three specific
chemicals found in crude oil: pristane, benzene, and mercury. Dr. Dahlgren based his
opinion, in part, on a cross-sectional epidemiologic study that he performed.
{8} 	In Dr. Dahlgren’s study, he relied on blood pristane data taken from the plaintiff
group and a review of their medical records. He compared the plaintiff group data
with similar data he collected from an unexposed group of California residents. The
district court excluded this blood pristane data as scientifically unreliable. The district
court also excluded, as scientifically unreliable, Dr. Dahlgren’s calculated “minimum
risk” levels for hydrogen sulfide and benzene and related cumulative exposure
estimates. These early rulings were important to the nature of Plaintiff’s chemical

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mixture theory for its lupus and other autoimmune disorder claims and laid the
foundation for subsequent summary judgment rulings by the district court. On appeal,
Plaintiffs do not challenge the early rulings regarding the blood pristane data and
minimum risk level estimates related to cumulative exposure.
{9} 	Shortly before trial commenced, Shell filed numerous motions in limine and
motions for summary judgment regarding all of Plaintiffs’ injury claims against Shell.
Shell challenged the Plaintiffs’ expert witness testimony on every claimed injury,
including their claims for respiratory, neurological and psychiatric injuries. As a part
of the motions in limine, Shell moved to exclude certain opinion testimony from Dr.
Dahlgren as well as his epidemiologic study. 	Shell argued that Dr. Dahlgren’s
causation 	opinions 	relating 	to 	lupus 	and 	other 	autoimmune 	disorders 	were
scientifically unreliable and lacked sufficient scientific support because his opinions
relied solely upon his own epidemiologic study. Shell asserted that Plaintiffs had to
prove both general and specific causation and that Dr. Dahlgren was their only general
causation expert. Shell argued that the cross-sectional design of Dr. Dahlgren’s own
epidemiologic study made it non-probative of causation. Shell supported its motions
with the affidavit of its own epidemiology expert and by referencing the Federal
Judicial Center, Reference Manual on Scientific Evidence, Reference Guide on
Medical Testimony (2d. ed. 2000) (the Federal Reference Manual). 	Shell further
argued that the mice studies that Dr. Dahlgren relied upon did not support his human

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causation opinions because the requisite extrapolation analysis was not done. 	Dr.
Dahlgren confirmed that there were no other epidemiologic studies showing that the
exposure to the specific chemical mixture at issue in this case would cause lupus or
other autoimmune disorders.
{10} 	The scientific studies relied upon by Plaintiffs to establish their claims for
respiratory, neurological and psychiatric injuries, did not include Dr. Dahlgren’s own
epidemiologic study. These injuries relied upon a plethora of other scientific evidence
and studies involving exposure to petrochemicals generally, as well as exposure to
specific chemicals and component elements found in crude oil. 	In its summary
judgment pleadings, Shell argued that the district court should apply the stringent
federal standard that has recently developed for determining whether expert testimony
will be admitted to establish causation. See Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 149 (1999) (extending Daubert’s gatekeeping function beyond scientific
evidence to encompass all expert testimony); Gen. Elec. Co. v. Joiner, 522 U.S. 136,
142-43,146 	(1997) 	(applying 	Daubert 	to 	expert 	reasoning, 	not 	just 	general
methodology, and clarifying that the district judge’s decision whether to admit
particular scientific evidence was to be reviewed only for an abuse of discretion).
{11} 	Plaintiffs responded with various exhibits and rebuttal affidavits that primarily
addressed the methodology of Dr. Dahlgren’s epidemiologic study. In his rebuttal
affidavit, Dr. Dahlgren provided detailed responses to rebut Shell’s assertions that his

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causation 	testimony 	was 	unreliable 	and 	that 	the 	methodology 	used 	in 	his
epidemiologic study was flawed. 	He also asserted for the first time that he had
mislabeled his epidemiologic study as cross-sectional and that the study did not suffer
from the usual causal limitations of a cross-sectional analysis. Dr. Dahlgren asserted
that his study was more appropriately labeled as a case-control study or a retrospective
cohort study. Plaintiffs argued that Dr. Dahlgren’s testimony should be admissible
under our case law for expert testimony that has developed under Alberico and
considered less stringent than recent federal precedent. 	See Lee v. Martinez, 2004-
NMSC-027, ¶ 48, 136 N.M. 166, 96 P.3d 291 (resolving doubts about the
admissibility of scientific evidence in favor of admission and explaining that, where
scientific evidence is questionable, “the remedy is cross-examination, presentation of
rebuttal evidence, and argumentation”); State v. Lente, 2005-NMCA-111, ¶ 4, 138
N.M. 312, 119 P.3d 737 (“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.”).
{12} 	The district court initially announced its ruling on the motions in limine and
motions for summary judgment by letter. The court found that issues concerning the
reliability of Dr. Dahlgren’s methodology in designing and conducting his study
would primarily go to weight and not to the admissibility of the study. As a result, the
methodology utilized in Dr. Dahlgren’s study was not the basis for granting summary

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judgment. Using the Alberico standard to analyze the scientific evidence, the district
court focused on whether there was a valid scientific link between the chemical
mixture theory propounded by Plaintiffs to establish its claims regarding lupus and
other 	autoimmune 	disorders 	and 	Dr. 	Dahlgren’s 	testimony 	regarding 	general
causation. The district court explained that Dr. Dahlgren’s cross-sectional study did
not comply with the Federal Reference Manual requirements and standing alone it
was not scientifically sufficient to support Plaintiffs’ claims of a causal relationship
between the specific chemical mixture and lupus. The court explained that a cross-
sectional study would only be relevant if it was supported by other general causation
evidence. The court also explained that despite Dr. Dahlgren’s testimony regarding
the animal studies, they were too dissimilar factually from the present case and,
therefore, they were not relevant. The district court thoroughly examined the other
evidence in the record which could serve as a possible foundation for Dr. Dahlgren’s
general causation testimony. After an extensive review of the evidence, the district
court ultimately found that none of the other cited studies made the necessary
connection between the specific hydrocarbon mixture and lupus or other autoimmune
disorders. 	As a result, the district court concluded that the scientific evidence
available was insufficient to establish a proper scientific basis for Dr. Dahlgren to
testify as to causation for Plaintiffs’ claims related to lupus or other autoimmune
disorders. 	The court then granted partial summary judgment in favor of Shell on

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Plaintiffs’ claims related to lupus and other autoimmune disorders. 	However, the
district court denied Shell’s numerous other motions in limine and motions for
summary judgment regarding the remainder of Plaintiffs’ claims. 	Plaintiffs’ other
claims alleging respiratory, neurological, and psychiatric injuries, as well as property
damage claims, proceeded to trial.
{13} 	To determine whether the district court’s summary judgment decision was
proper we shall address: (A) proof of causation in a toxic tort case, (B) Rule 11-702
NMRA and the application of Daubert/Alberico under New Mexico law, (C) our
standard of review of a district court order excluding expert witness testimony under
Daubert/Alberico, (D) the district court orders excluding Dr. Dahlgren’s expert
opinions regarding the specific chemical mixture theory as it relates to lupus and other
autoimmune disorders.
A. 	Proof of Causation in a Toxic Tort Case
{14} 	To establish causation in a toxic tort case, expert testimony is required to show
both “general causation” and “specific causation.” 	Andrews v. U.S. Steel Corp.,
2011-NMCA-032, ¶ 9, 149 N.M. 461, 250 P.3d 887 (“Scientific knowledge of the
harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed
to such quantities, are minimal facts necessary to sustain the plaintiffs’ burden in a
toxic tort case.” (internal quotation marks and citation omitted)). “General causation
is whether a substance is capable of causing a particular injury or condition in the

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general population and specific causation is whether a substance caused a particular
individual’s injury.” 	Id. (internal quotation marks and citation omitted); see also
Federal Reference Manual at 481, 483 (stating that “[g]eneral causation is established
by demonstrating (usually by reference to a scientific publication) that exposure to the
substance in question causes (or is capable of causing) disease” and that “[s]pecific,
or individual, causation is established by demonstrating that a given exposure is the
cause of an individual’s disease”).
{15} 	In this case, general causation involves whether and at what level the specific
petrochemical mixture at issue—pristane, benzene, and mercury—is capable of
causing lupus and the varied autoimmune disorders. 	Specific causation involves
whether the petrochemical mixture did in fact cause the varied autoimmune disorders
suffered by Plaintiffs.
B. 	Rule 11-702 and the Application of Daubert/Alberico
{16} 	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 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). 	The burden is on the party offering the evidence to satisfy these

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requirements. Andrews, 2011-NMCA-032, ¶ 11. The two prerequisites at issue in this
case are whether Dr. Dahlgren’s testimony would assist the trier of fact, and whether
Dr. Dahlgren’s opinions are reliable. See State v. Fuentes, 2010-NMCA-027, ¶ 23,
147 N.M. 761, 228 P.3d 1181 (stating that the reliability requirement for the
admission of scientific evidence under Daubert implicates the third prerequisite), cert.
denied, 2010-NMCERT-002, 147 N.M. 704, 228 P.3d 488.
{17} 	Where essential elements of Plaintiffs’ case are entirely dependent upon expert
testimony, the trial judge has a duty 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, cert.
granted sub nom. Joey P. v. Alderman-Cave Milling, 2010-NMCERT-012, 150 N.M.
493, 263 P.3d 270. This is because “[s]cientific evidence can only assist the trier of
fact if it is grounded in valid, objective science and is reliable enough to prove what
it purports to prove.” 	Lee, 2004-NMSC-027, ¶ 15 (internal quotation marks and
citation omitted).
{18} 	To be relevant, expert testimony should help the trier of fact understand the
evidence or help determine a disputed issue in the case. See, e.g., Zia Trust, Inc. v.
Aragon, 2011-NMCA-076, ¶ 19, 150 N.M. 354, 258 P.3d 1146 (“To be relevant,
expert testimony must fit the facts of the case and prove what it purports to prove.”

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(alteration, internal quotation marks, and citation omitted)), cert. denied, 2011-
NMCERT-006, 150 N.M. 763, 266 P.3d. 632. Specific to the issue of relevance, the
question is whether the scientific evidence presented by Dr. Dahlgren was sufficient
to show whether and at what levels the petrochemical mixture of pristane, benzene,
and mercury would cause lupus or other autoimmune disorders. Reliability, on the
other hand, requires that the testimony or evidence be grounded in established
scientific principles or methods. Andrews, 2011-NMCA-032, ¶ 13. Specific to the
issue of reliability, the question was whether the studies presented by Dr. Dahlgren
were grounded in objective science and reliable enough to be accepted within the
scientific community.
C. 	Standard of Review
{19} 	The determination of the relevance and reliability, and thus admissibility, of
scientific testimony “lies in the discretion of the district court.” 	Zia Trust,
2011-NMCA-076, ¶ 14; see also Alberico, 116 N.M. at 169, 861 P.2d at 205 (stating
that we review a district court’s admission or exclusion of expert testimony for abuse
of discretion). “An abuse of discretion requires this Court to conclude that the district
court’s ruling is clearly contrary to the logical conclusions demanded by the facts and
circumstances of the case.” 	Zia Trust, 2011-NMCA-076, ¶ 14 (internal quotation
marks and citation omitted). “An abuse of discretion standard of review, however, is
not tantamount to rubber-stamping the [district] judge’s decision.” 	Alberico, 116

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N.M. at 170, 861 P.2d at 206. Appellate courts should conduct a meaningful analysis
of the record below to “ensure that the [district] judge’s decision was in accordance
with the Rules of Evidence and the evidence in the case.” Id.
D. 	Dr. Dahlgren’s Expert Opinion
{20} 	The opinion testimony from Dr. Dahlgren was proffered by Plaintiffs to
establish that at certain measurable levels a mixture of pristane, benzene, and mercury,
three specific chemicals found in crude oil, is capable of causing or contributing to
lupus and other autoimmune disorders. 	In fulfilling its function to analyze the
scientific evidence, the district court specifically chose not to address whether Dr.
Dahlgren’s methodology was reliable. 	Instead, the court excluded Dr. Dahlgren’s
epidemiologic study and his opinion testimony on the basis of relevance. It explained,
“[d]isregarding the questions of invalid data [and] unreliable methodology[,] . . . the
real questions are: 	1) What are the conclusions of the study? 2) Is it relevant to a
matter at issue? and 3) would it help the jury?” Because the district court’s Rule 11-
702 decision was premised on the issue of relevance rather than reliability, our
analysis will only focus on the issue of relevancy.
{21} 	Plaintiffs argue on appeal that the district court abused its discretion in
excluding Dr. Dahlgren’s testimony because the basis for exclusion went to the weight
of his testimony, not its admissibility. We disagree. The district court found that the
underlying scientific data was insufficient to establish the necessary causal nexus

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between the specific chemical mixture and lupus or other autoimmune disorders. Dr.
Dahlgren relied on his own epidemiologic study and a variety of other animal and
human studies to form his opinion as to general causation. 	We shall address the
relevance of each foundational basis of Dr. Dahlgren’s opinion.
1. 	Dr. Dahlgren’s Own Study
{22} 	Dr. Dahlgren based his general causation opinion in part on his own
epidemiologic study. In performing his study, Dr. Dahlgren collected data from the
plaintiff group through questionnaires and blood samples. He collected similar data
from an unexposed group of California residents. He compiled the data and labeled
his compilation as a community comparison cross-sectional study. 	The study
concluded that there was a higher prevalence of a number of conditions, from
respiratory complaints to lupus, in the exposed group. As a result, the study opined
that environmental toxins, specifically pristane and mercury, may induce lupus. The
study also specified that “[f]urther research is needed to determine the mechanism of
effect for each of the suspected causal exposures and to assess 	possible synergy
between exposures.” As a result, Dr. Dahlgren’s study was not designed to determine
whether and at what levels the petrochemical mixture of pristane, benzene, and
mercury would cause lupus or autoimmune disorders. 	It simply compared the
differences in the reported incidence of certain medical ailments between two

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geographically specific community groups.
{23} 	Plaintiffs argue that Dr. Dahlgren’s methodology was a reliable basis to
determine general causation and the district court abused its discretion by excluding
the study. But the district court did not exclude the study solely because it was labeled
as a “cross-sectional study[,]” as Plaintiffs’ claim. Rather, our review of the record
reveals that the district court excluded the study because, regardless of the reliability
of the study’s underlying methodology, Dr. Dahlgren’s study itself fails to establish
the necessary nexus between the underlying data and Dr. Dahlgren’s opinions
regarding causation. 	The district court explained that the study “does not fit” any
disputed issue in the case because the data in the study “may not even show an
association and it certainly fails to bridge the gap from association to causation.” As
such, we need not address Plaintiffs’ numerous arguments regarding the reliability of
Dr. Dahlgren’s underlying methodology. 	Instead we must look at whether the
determination of a potential association made by Dr. Dahlgren’s study is appropriate
to establish the necessary scientific link to his causation conclusion.
{24} 	Plaintiffs argue that this approach improperly focuses on Dr. Dahlgren’s
conclusions. 	See Torres, 1999-NMSC-010, ¶ 34 (“The focus must be solely on
principles and methodology, not on the conclusions that they generate.” (alteration,
internal quotation marks, and citation omitted)); Heller v. Shaw Indus., Inc., 167 F.3d
146, 153 (3d Cir. 1999) (explaining that a district court may “not exclude [expert]

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testimony simply because the conclusion was ‘novel’ if the methodology and the
application of the methodology were reliable”). 	We disagree. 	“[N]othing in . . .
Daubert . . . requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert. A court may conclude that there is
simply too great an analytical gap between the data and the opinion proffered.”
Joiner, 522 U.S. at 146 (citing Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349,
1360 (6th Cir. 1992)). “The analytical gap between the evidence presented and the
inferences to be drawn on the ultimate issue of [causation] is too wide. Under such
circumstances, a jury should not be asked to speculate on the issue of causation.”
Turpin, 959 F.2d at 1360-61. It is this missing link between that factual data and Dr.
Dahlgren’s conclusion that was being addressed by the district court. Nothing in his
study stated whether and at what levels this petrochemical mixture of pristane,
benzene, and mercury would cause lupus or other autoimmune disorders.
{25} 	While it is true that epidemiologic studies are generally used as proof of
causation, not all epidemiologic studies can establish causation. See Joiner, 522 U.S.
at 146-47 (upholding district court’s conclusion that four epidemiologic studies on
which respondent relied were not sufficient to support experts’ opinions regarding
causation). In this appeal, Plaintiffs go to great lengths to explain how Dr. Dahlgren’s
methodology 	overcomes 	the 	usual 	limitations 	of 	cross-sectional 	analysis 	in
determining a casual link. See Federal Reference Manual at 339 (“[C]ross-sectional

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studies are rarely useful in identifying toxic agents.”). But this argument does nothing
to dispel the concern identified in this case that at the time the study was executed and
conceived it was not intended to establish the necessary causal link to address general
causation. The study itself explains that “[t]his is a community comparison study that
examines persons living in a subdivision exposed . . . and compares their health status
and questionnaire responses to those living in [an unexposed subdivision.]”
{26} 	Finally, it is significant that at the time the district court was evaluating the
study’s relevance, Plaintiffs argued that the “epidemiologic[] study was not intended
to prove causation but was conducted to merely compare the health status of two
different populations.” 	Without a more concrete basis to support the causal link
between the specific chemical mixture and these health conditions, Dr. Dahlgren’s
study is only relevant to show a generally higher incidence of certain medical
disorders in two community groups but is insufficient to establish a general causation
link 	to 	lupus 	and 	other 	autoimmune 	disorders. 	See 	State 	v. 	Downey,
2008-NMSC-061, ¶¶ 30, 32, 145 N.M. 232, 195 P.3d 1244. 	As a result, Dr.
Dahlgren’s epidemiologic study alone could not establish a causal relationship
because it did not address whether the specific petrochemical mixture in this case
would cause lupus and the other autoimmune disorders. In light of these factors, we
conclude that the district court did not abuse its discretion when it ruled that Dr.
Dahlgren’s study failed to meet the Daubert/Alberico prerequisites for an expert

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opinion on causation.
2. 	Totality of Dr. Dahlgren’s Evidentiary Basis for His Causation Conclusion
{27} 	Although the district court found that Dr. Dahlgren’s study, standing alone, was
not sufficient to establish general causation, it explained that the study might still be
helpful to the jury’s determination. The district court explained that the study might
be still be relevant if the totality of the other scientific evidence bridges the analytical
gap from association to causation for lupus and autoimmune disorders. 	See Joiner
v.Gen. Elec. Co., 78 F.3d 524, 532 (11th Cir. 1996), rev’d on other grounds by 522
U.S. at 146-47 (“Opinions of any kind are derived from individual pieces of evidence,
each of which by itself might not be conclusive, but when viewed in their entirety are
the building blocks of a perfectly reasonable conclusion, one reliable enough to be
submitted to a jury along with the tests and criticisms cross-examination and contrary
evidence would supply.”). After examining the totality of the other scientific evidence
to support an opinion and conclusion that this specific petrochemical mixture can
generally cause lupus and other autoimmune disorders, the district court found that
there was still insufficient evidence to establish the necessary link.
{28} 	Dr. Dahlgren had based his general causation opinion on additional animal
studies involving various species. The district court specifically addressed a mouse
study that involved injecting mice with a high dose of pure alkane pristane and
concluded that the facts of this case were sufficiently dissimilar to the animal study.

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In the study, the mice injected with pristane showed signs of plasmacytosis in as little
as three days. 	Another animal study discussed by Dr. Dahlgren 	was a rat study
involving injections of pristane. 	In the rat study, the pristane injections induced
arthritis. Similarly, Plaintiffs rely on another mouse study conducted by Dr. Yang.
However, the results of that study were not identical to human cases, and Dr. Dahlgren
admitted that, in those cases, “the route of exposure in the mouse may make a
difference.” Plaintiffs’ brief in chief focuses on the reliability of mouse studies for Dr.
Dahlgren’s opinion and the fact that mouse studies can be a scientifically valid model
for human lupus. But the district court did not find that animal studies were unreliable
to prove causation, instead it explained that the specific studies per se relied on by Dr.
Dahlgren did not fit the facts of this case.
{29} 	The district court previously excluded, as unreliable, the blood pristane analysis
of the Westgate population prepared by Dr. Dahlgren for his epidemiologic study.
Aside from the problems relating to the dosage in the animal study that involved
pristane being injected directly into the bloodstream of mice, the study was irrelevant
to the facts of this case without any evidence of the level of pristane in the exposed
population’s bloodstream. 	See Valentine v. PPG Indus., Inc., 821 N.E.2d 580, 593
(Ohio Ct. App. 2004) (“[I]n order for animal studies to be admissible to prove
causation in humans, there must be good grounds to extrapolate from animals to
humans[.]” (internal quotation marks and citation omitted)). “[I]t is . . . within the

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court’s province to ensure that . . . [an] expert’s ultimate conclusion on causation,
‘fits’ with the data alleged to support it.” 	Heller, 167 F.3d at 158. “[L]aboratory
animal studies are generally viewed with more suspicion than epidemiologic[] studies,
because they require making the assumption that chemicals behave similarly in
different species.” 	See In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1223,
1241 (E.D.N.Y. 1985) (alteration, internal quotation marks, and citation omitted),
aff’d, 818 F.2d 187 (2d Cir. 1987). 	Dr. Dahlgren did not provide any information
regarding why the results involving those species, chemicals, and doses are
meaningful to establish the effect the specific petrochemical mixture at issue in this
case would have on humans. See Sorensen v. Shaklee Corp., 31 F.3d 638, 646 n.12
(8th Cir. 1994) (“Because of the dose-response differential between animals and
humans . . . extrapolating to humans from animal studies is problematic.”).
{30} 	Plaintiffs’ argument that the district court improperly rejected Dr. Dahlgren’s
reliance on mouse studies based solely on a general apprehension about inter-species
and inter-dosage extrapolation, see Metabolife Int’l., Inc. v. Wornick, 264 F.3d 832,
842 (9th Cir. 2001), is not well taken. Instead, the record reflects that the district court
thoroughly reviewed the various animal studies Dr. Dahlgren relied upon in forming
his causation opinion. As discussed above, the district court focused on the problems
inherent with the animal studies as applied to the specific facts and claims in this case.
The district court concluded that the animal studies were too dissimilar to the facts in

21
this case. 	The district count also concluded that the Plaintiffs presented no
information regarding the dose response relationship and extrapolation to humans.
This missing link in the causation analysis was never addressed by Plaintiffs. As a
result, it was not an abuse of discretion for the district court to determine that the
animal studies failed to provide the necessary scientific foundation required to support
Dr. Dahlgren’s opinions regarding general causation for lupus and autoimmune
disorders.
{31} 	The record reflects that the district court also reviewed and considered the
human studies relied on by Dr. Dahlgren to form his causation opinion. 	The
additional human studies relied on by Dr. Dahlgren discussed the individual
immunological, neurological or respiratory effects of pristane, benzene or mercury.
Significantly, none of these studies dealt with the specific mixture relied upon by Dr.
Dahlgren or the medical disorders at issue in this case. 	Plaintiffs provided no
information as to how and why the different exposures translated to the plaintiff group
in this case. 	See Mitchell v. Gencorp, Inc., 165 F.3d 778, 781-83 (10th Cir. 1999)
(upholding a district court’s exclusion of expert opinions based on studies that address
the relationship between diseases and agents different from those at issue in the
litigation); Siharath v. Sandoz Pharm. Corp., 131 F. Supp. 2d 1347, 1365 (N.D. Ga.
2001) (excluding proffered testimony because both the agent and the disease at issue
were not the same as those discussed in studies on which plaintiffs’ experts relied),

22
aff’d sub nom. Rider v. Sandoz Pharm. Corp., 295 F.3d 1194 (11th Cir. 2002). {32}
Plaintiffs could not articulate any study, other than Dr. Dahlgren’s own study
of the Westgate population, that would support the opinion that the petrochemical
mixture caused the lupus and other autoimmune disorders identified in this case. Dr.
Dahlgren himself explained that the most factually similar study he relied upon
involved a lupus cluster near a hazardous waste site in Georgia, but that the study
never identified the chemicals present at the waste site. While the non-existence of
good data is not fatal to a claim, the fact that there is no other available data does not
loosen the requirements that expert witnesses need base their conclusions on adequate
scientific evidence and not conjecture. See Parkhill, 2010-NMCA-110, ¶ 37 (“Expert
testimony may be received if, and only if, the expert possesses such facts as would
enable him to express a reasonably accurate conclusion as distinguished from mere
conjecture.” (internal quotation marks and citation omitted)); Perry v. Novartis
Pharm. Corp., 564 F. Supp. 2d 452, 468 (E.D.Pa. 2008) (“In cases where no adequate
study shows the link between a substance and a disease, expert testimony will
generally be inadmissible, even if there are hints in the data that some link might exist.
This may mean that early victims of toxic torts are left without redress because they
are unable to prove their cases with the scientific data that exists.”); see also Rosen v.
Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) (“[T]he courtroom is not the place
for scientific guesswork, even of the inspired sort. Law lags [behind] science; it does

23
not lead it.”).
{33} 	There must be a link between the factual data used by an expert and the
conclusion the expert offers. 	Here, the record reflects that the district court
thoroughly reviewed the various studies, both human and animal, that Dr. Dahlgren
relied upon to form his opinion regarding causation. We conclude that the district
court did not abuse its discretion when it determined that Dr. Dahlgren could not base
his general causation opinions on his cross-sectional study or the other cited human
and animal studies. For the foregoing reasons, we affirm the district court’s grant of
partial summary judgment in favor of Defendants.
II. 	The Motion for New Trial
{34} 	After the jury was selected and sworn, the court instructed the jury pursuant to
UJI 13-110 NMRA. 	Since March 1, 2005, the instruction has allowed jurors to
discuss the evidence among themselves throughout the trial, including witnesses,
testimony, and exhibits, but only in the jury room when all of the jurors are present.
It further cautions jurors to keep an open and impartial mind, to not prejudge the case,
and to not attempt to sway other jurors about the outcome of the case before
commencing final deliberations. Throughout the course of the seventeen day trial, the
district court repeatedly reminded the jurors about these concepts. 	The jury
deliberated a little over one and a half hours before announcing its verdict. 	In its
verdict, the jury found against Plaintiffs on all claims.

24
{35} 	After the verdict was announced, Plaintiffs declined to have the jury polled.
Plaintiffs later moved for a new trial based on the affidavit of an alternate juror who
did not participate in the final deliberations. The record was also supplemented with
affidavits from three jurors who were involved in deliberations.
{36} 	Plaintiffs assert that the district court abused its discretion by denying their
motion for a new trial as to all Plaintiffs. 	Plaintiffs base this motion on affidavits
submitted by the three jurors and the one alternate juror. Plaintiffs do not argue on
appeal that extraneous information reached the jury. Before the district court could
reach the merits of Plaintiffs’ misconduct claims, it had to first determine whether
Rule 11-606(B) NMRA permitted the court to even consider the juror affidavits. The
district court assumed without deciding that the affidavits were admissible. 	The
district court then addressed the issue of whether comments made primarily by two
jurors affected juror deliberations and Plaintiffs’ right to a fair trial. To determine
whether the district court properly denied Plaintiffs’ motion for new trial we discuss:
(A) our standard of review, (B) the admissibility of juror affidavits under Rule 11-
606(B), (C) the discussions by the jury that are now authorized by UJI 13-110, and
(D) the admissibility of the juror affidavits in this case.
A. 	Standard of Review
{37} 	The denial of a motion for new trial based on jury misconduct is reviewed under
the abuse of discretion standard. 	State v. Mann, 2002-NMSC-001, ¶ 17, 131 N.M.

25
459, 39 P.3d 124. 	The interpretation of the scope of Rule 11-606(B), the rule
governing admissibility of juror testimony, is subject to de novo review. Shadoan v.
Cities of Gold Casino, 2010-NMCA-002, ¶ 6, 147 N.M. 444, 224 P.3d 671.
B. 	Admissibility of the Juror Affidavits under Rule 11-606(B)
{38} 	Our initial inquiry is whether the juror affidavits are admissible under Rule 11-
606(B). With limited exceptions, New Mexico has long adhered to the rule that juror
testimony is inadmissible when offered to impeach the jury’s verdict. See Goldenberg
v. Law, 17 N.M. 546, 556-57, 131 P. 499, 502 (1913); see also Skeet v. Wilson, 76
N.M. 697, 699, 417 P.2d 889, 890 (1966) (“New Mexico has long been aligned with
those courts which deny the right to a new trial based alone on affidavits or statements
of jurors presented after the jury has been discharged.”). 	Rule 11-606(B), the
mechanism for excluding such testimony, provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the course of
the jury’s deliberations or to the effect of anything upon that or any other
juror’s mind or emotions as influencing . . . the verdict . . . . A juror’s
affidavit or evidence of any statement by the juror may not be received
on a matter about which the juror would be precluded from testifying.
{39} 	We have previously explained that the purpose of Rule 11-606(B) is to protect
the sanctity of jury deliberations. See State v. Ramming, 106 N.M. 42, 48, 738 P.2d
914, 921 (Ct. App. 1987) (stating that New Mexico cases relating to communications
with the jury during deliberations and involving matters concerning the deliberations

26
“obviously reflect the sacrosanctity of the jury’s deliberative process”); Shadoan,
2010-NMCA-002, ¶ 13 (“[J]ury deliberation is intended to be private, and the
potential for deliberations to be open to public investigation would cause a chilling
effect and prevent jurors from functioning effectively.”). However, we have not used
the rule as a per se bar against consideration of any statement made by a juror. See
Rios v. Danuser Mach. Co., 110 N.M. 87, 91, 792 P.2d 419, 423 (Ct. App. 1990)
(“[T]he rule does not prevent the questioning of a juror or the consideration of an
affidavit concerning the truthfulness of a juror’s answers to questions propounded on
voir dire.”). 	Instead, we have only applied the rule to prevent a court from
considering juror testimony or affidavits to impeach a verdict on the basis of alleged
juror statements that demonstrate an inquiry into the mental processes of jurors during
their deliberations. See id.
{40} 	On appeal, Plaintiffs assert only juror bias and prejudgment during trial. As a
result, the juror affidavits, which describe statements made during the course of trial,
are inadmissible under Rule 11-606(B) if they implicate the jury’s deliberative
process. Plaintiffs argue that Rule 11-606(B) does not preclude consideration of the
affidavits due to this Court’s holding in Goodloe v. Bookout, 1999-NMCA-061, ¶ 17,
127 N.M. 327, 980 P.2d 652 (Ct. App. 1999). 	In Goodloe, we admitted a juror’s
affidavit containing evidence of possible jury misconduct because “[i]t addresse[d]
matters that occurred prior to the jury’s deliberations; and it [did] not purport to state

27
how those matters affected the later deliberations.” Id. However, the jury in Goodloe
was instructed not to discuss the case with anybody, including other jurors, during the
trial, see UJI 13-106(1) NMRA, and not to form or express an opinion as to any issue
until all of the evidence has been heard, see UJI 13-106(5) NMRA. Goodloe, 1999-
NMCA-061, ¶ 15.
{41} 	In 2005, after this Court decided Goodloe, our New Mexico Supreme Court
promulgated UJI 13-110, one of the preliminary jury instructions used in this case.
UJI 13-110 permits the jury to discuss evidence amongst themselves during trial and
states, in relevant part:
[Y]ou may discuss the evidence during the trial, but only among
yourselves and only in the jury room when all of you are present. . . . The
kinds of things you may discuss include the witnesses, their testimony,
and exhibits. Be careful, however, not to make up your minds or try to
convince others about the final outcome of the case until you have heard
everything—all the evidence, the final instructions of law, and the
attorneys’ closing arguments. 	It would be unfair to the parties if you
attempt to decide the outcome of the case before you begin final
deliberations.
Thus, because UJI 13-110 now permits juries to discuss the evidence among
themselves during trial, we must first determine the continued vitality of our holding
in Goodloe.
C. 	Discussions Authorized by UJI 13-110
{42} 	The admissibility of the juror affidavits in this case depends on whether juror
discussions of evidence throughout trial and amongst themselves, as permitted by UJI

28
13-110, are shielded from public disclosure by Rule 11-606(B). Plaintiffs contend
that the promulgation of UJI 13-110 did not alter the scope or meaning of Rule 11-
606(B) and the Goodloe exception to the rule still applies. In response, Shell argues
that UJI 13-110 permits the jury to deliberate throughout the trial and, therefore, the
Rule 11-606(B) shield over the workings of the jury’s deliberative process extends to
the deliberations authorized under UJI 13-110.
{43} 	“We apply the same rules of construction to procedural rules adopted by the
Supreme Court as we do to statutes.” 	State v. Miller, 2008-NMCA-048, ¶ 11, 143
N.M. 777, 182 P.3d 158. According to those rules of construction, our overarching
goal is to determine the underlying intent of the drafters, Roark v. Farmers Group.,
Inc., 2007-NMCA-074, ¶ 50, 142 N.M. 59, 162 P.3d 896, and we begin that task by
parsing the plain language of the rule. See State v. Steven B., 2004-NMCA-086, ¶ 15,
136 N.M. 111, 94 P.3d 854 (“Our starting point is the plain language of the statute.”).
Additionally, to determine whether Rule 11-606(B) protects the juror affidavits from
consideration, we must read Rule 11-606(B) in pari materia with the more recently
adopted UJI 13-110 to achieve the goals of both. See Walker v. Walton, 2003-NMSC-
014, ¶ 11, 133 N.M. 766, 70 P.3d 756 (using the concept of in pari materia to guide
its interpretation of the Rules of Criminal Procedure); Att’y Gen. v. N.M. Pub.
Regulation Comm’n, 2011-NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453 (“[T]wo
statutes covering the same subject matter should be harmonized and construed

29
together when possible, in a way that facilitates their operation and the achievement
of their goals.” (internal quotation marks and citation omitted)).
{44} 	The plain language of Rule 11-606(B) indicates that the determinative
characteristic of the protection set forth in the rule is not when during a trial the
discussion occurs, but whether the discussion is, by its nature, part of the jury’s
discussion and analysis of the evidence in the case. This conclusion is bolstered by
the Supreme Court’s recent adoption of UJI 13-110 which permits the jury to weigh
the evidence presented to them at trial and anticipates that the jury will form
preliminary opinions on the evidence. 	We conclude that the Supreme Court
promulgated UJI 13-110 with the intent to permit the jury to engage in a limited form
of protected deliberation throughout the course of trial. This conclusion is consistent
with the dictionary definition for “deliberation.” Webster’s Third New International
Dictionary 1191 (Unabridged 1993) (defining “deliberation” as “the act of weighing
and examining the reasons for and against a choice or measure”); see also Battishill
v. Farmers Alliance Ins. Co., 2006-NMSC-004, ¶ 8, 139 N.M. 24, 127 P.3d 1111
(“We . . . hold that the common and ordinary meaning . . . may be ascertained from
a dictionary.”). We also recognize that our Supreme Court was aware of Rule 11-
606(B) when it adopted UJI 13-110. See Pub. Serv. Co. v. N.M. Pub. Util. Comm’n,
1999-NMSC-040, ¶ 23, 128 N.M. 309, 992 P.2d 860. If the Supreme Court had not
intended the protection of Rule 11-606(B) to include discussions of the evidence

30
during trial, then the language of UJI 13-110 would have clearly distinguished
between deliberations and discussions of the evidence during trial. See, e.g., Ind. Jury
Rule 20(a)(8) (“[J]urors . . . are permitted to discuss the evidence among themselves
in the jury room during recesses from trial when all are present, as long as they reserve
judgment about the outcome of the case until deliberations commence.”); N.D. R. Ct.
6.11(a) (“In a civil case, the court may, without objection, allow the jury to engage in
predeliberation discussion.”). Instead, the instruction contemplates both preliminary
discussions and“final deliberations.” 	See UJI 13-110. We see no practical way to
distinguish between the two for purposes of protecting jury communications.
Therefore, the Supreme Court’s promulgation of UJI 13-110 reflects its belief that
Rule 11-606(B) shields the jury’s mental processes, including juror discussions of the
evidence among themselves prior to final deliberations.
{45} 	We conclude that the promulgation of UJI 13-110 specifically changed the
prohibition for pre-deliberation discussions that this Court outlined in Goodloe. Our
conclusion is consistent with the purpose of Rule 11-606(B): 	to cloak the mental
processes of the jury in reaching its verdict. To conclude otherwise, that Rule 11-
606(B) would only shield final deliberations from disclosure, would thwart the
purposes of both Rule 11-606(B) and UJI 13-110. Allowing jurors to discuss their
opinions on the witnesses, the testimony, and the exhibits, but not protecting those
discussions from public disclosure under Rule 11-606(B), would dissuade jurors from

31
engaging in exactly the type of evidentiary discussions during trial that UJI 13-110
was adopted to permit. Moreover, the sanctity of these preliminary jury discussions
would become vulnerable to public exposure if only final deliberations were
protected. 	See State v. Jojola, 2005-NMCA-119, ¶ 23, 138 N.M. 459, 122 P.3d 43
(“The sanctity of jury trials cannot be . . . subjected to the hazard of suspicion.”
(internal quotation marks and citation omitted)). 	The purpose of discussing the
evidence during trial is to weigh the evidence and examine the different reasons for
and against the ultimate issue in the case. 	See, e.g., Shari Seidman Diamond et al.,
Juror Discussions During Civil Trials: Studying an Arizona Innovation, 45 Ariz. L.
Rev. 1, 62, 63-64, 71 (2003) (discussing the benefits to jury comprehension of trial
evidence when jurors are instructed that trial discussions are proper). 	The district
court cannot review or consider such discussions by the jury unless these discussions
directly implicate the narrow issue of improperly “[deciding] the final outcome of the
case.” UJI 13-110 (emphasis added); see Rule 11-606(B). Any other consideration
of preliminary jury discussions for the purpose of impeaching a jury’s verdict would
undermine the sanctity of the jury deliberation process and violate Rule 11-606(B).
C. 	Admissibility of the Juror Affidavits in This Case
{46} 	Having determined that discussions of the evidence prior to final deliberations
are protected from disclosure by Rule 11-606(B), we must next determine the
application of the rule to the affidavits in this case. The juror affidavits present the

32
following as instances of juror misconduct: (1) statements that some of Plaintiffs’
symptoms were the result of medication side effects; (2) a statement that one of the
Plaintiffs was ill with something other than contamination; (3) a statement that asthma
and bronchitis could only be diagnosed by a chest x-ray, contrary to Plaintiffs’
medical expert; (4) a statement that the Department of Health went to the
neighborhood because of tuberculosis; (5) comments regarding the sexual orientation
and morals of two of the plaintiffs; (6) a statement that oil companies would “pull out”
in the event of a pro-plaintiff verdict; and (7) comments during breaks in the trial that
the trial was “a waste of . . . time” and that the juror was tired of hearing the same
evidence. 	With one possible exception, we conclude that the juror statements
discussed in the affidavits are inadmissible comments on the jury’s preliminary
deliberation process.
{47} 	The jury here was instructed that it was proper to discuss the evidence among
themselves during trial, and, as the district court recognized, most of the reported
remarks are permissible comments on the evidence presented to the jury. Statements
one through four, for example, are all remarks on the evidence elicited at trial and are
clearly permissible jury evaluations of the strengths and weaknesses of the trial
evidence. See State v. Chamberlain, 112 N.M. 723, 732, 819 P.2d 673, 682 (1991).
These statements regarding Plaintiffs’ symptoms, the process for diagnosing the
symptoms, and whether those symptoms might be indicative of illnesses other than

33
contamination, indicate little more than that jury members weighed the credibility of
the medical witnesses and their testimony as a part of the preliminary deliberation
process. As such, statements one through four can be considered inadmissible as a
proper preliminary comment on the sufficiency of the evidence presented at trial.
{48} 	Additionally, while statements five and six are not necessarily relevant
evaluations of the evidence, the comments do derive from testimony presented
throughout the trial. The statement regarding the morals of one Plaintiff, for example,
was based on her testimony that she had a child out of wedlock. 	Similarly, the
comment regarding another Plaintiffs’ sexual orientation could have referred to his
testimony that after his divorce, a male moved into his home. 	The district court
correctly noted that these comments were insensitive and irrelevant but held that they
were nonetheless permissible comments regarding the witnesses and the testimonial
evidence received. 	See UJI 13-110. 	The district court analyzed whether these
comments indicated juror bias and ultimately concluded that the jury found against all
nine Plaintiffs as to liability and, therefore, the district court could not find that
statements 	regarding 	only 	two 	Plaintiffs 	had 	a 	prejudicial 	impact 	on 	juror
deliberations. Additionally, the district court explained that Plaintiffs failed to present
any evidence that these comments actually imputed bias to the jurors who uttered
them or that the comments imputed bias to the rest of the jury.
{49} 	Next, the district court found no evidence that discussing the effect a verdict

34
against Shell might have on Shell’s continued activity in Hobbs entered into the
juror’s deliberations or prejudiced Plaintiffs’ in any way. Similarly, this was also a
permissible discussion on the evidence presented at trial. 	Plaintiffs themselves
discussed the possible effect of a verdict for Plaintiffs on the oil and gas industry in
closing argument, and the district court acknowledge that “whether subtly or directly
the parties argued the general effect a verdict would have.” The affidavits support an
inference that statements one through six were made during jury discussions of the
evidence occurring throughout trial and thus the district court improperly considered
them. Although the district court erred in considering these portions of juror affidavits
under Rule 11-606(B), it properly denied Plaintiffs’ motion for new trial with regard
to these statements.
{50} 	The seventh assertion regarding juror statements that the trial was a “waste of
. . . time” may fall outside the shield provided by Rule 11-606(B). As such, if the
statements could be considered evidence of fixed predeterminations of the final
outcome in the case, then it would be proper for this Court to evaluate the statements.
This is because the statements may reflect a violation of the preliminary deliberation
instruction under UJI 13-110 and the recognition that one biased juror can destroy
“[t]he integrity of a jury.” 	State v. Chavez, 78 N.M. 446, 447, 432 P.2d 411, 412
(1967). The party claiming juror bias has the burden of proof to demonstrate, based
on the presence or absence of evidence, “that [the alleged impartial jurors] were

35
unwilling or unable to decide the case based on the evidence adduced at trial and the
instructions given by the [district] court[.]” State v. Rackley, 2000-NMCA-027, ¶ 11,
128 N.M. 761, 998 P.2d 1212. 	Here, the record reflects that the district court
undertook a thorough analysis of whether these statements indicated that the jurors
failed to deliberate before ultimately deciding that Plaintiffs had failed to meet their
burden.
{51} 	Plaintiffs assert that a juror’s statements throughout trial “clearly communicated
that [the juror’s] views would not be altered by anything that occurred at trial.” After
reviewing the juror affidavits relied on by Plaintiffs, the district court looked at the
totality of the circumstances and the trial conduct of the allegedly biased jurors, and
ultimately concluded that the Plaintiffs’ allegations of jury pre-determination was not
supported by the evidence. This conclusion is supported by the record.
{52} 	The juror affidavits merely assert that within the first three days of trial a juror
stated, “Why are we here? This is a waste of our time[,]” and that “we know what the
outcome is.” The juror affidavits also assert that, at some point during the trial, the
same juror complained that she was tired of hearing the same evidence and just
wanted to go home. However, these statements alone are vague and are insufficient
to meet Plaintiffs’ burden of proof to present evidence that the juror’s opinion was
immutably fixed. 	See United States v. Caldwell, 83 F.3d 954, 956 (8th Cir. 1996).
Instead, the statements can be interpreted many different ways, including the

36
possibility that they are the result of juror discussions regarding the weaknesses of
Plaintiffs’ case, and Plaintiffs have failed to point this Court to anything in the record
that would indicate otherwise. See Murphy v. Strata Prod. Co., 2006-NMCA-008, ¶
9, 138 N.M. 809, 126 P.3d 1173 (“Absent a record, we are left with the arguments in
the briefs, and argument of counsel is not evidence.”).
{53} 	On the contrary, to support their argument that these statements reflect a jury
member’s immutable opinion, Plaintiffs point to permissible discussions of the
evidence presented by the parties at trial. 	But, along with UJI 13-110, the court
instructed the jury that they should not hesitate to re-examine their views and change
their opinions after consulting with one another and throughout the course of their
deliberations. Unlike in Goodloe, the jury instructions in this case allowed the jury
to form preliminary opinions about the evidence and to discuss those opinions
throughout the course of trial. Therefore, a jury member’s expression of a preliminary
opinion as to liability did not alone violate the district court’s instructions. Without
any additional basis to establish that any juror’s opinion was immutably fixed or that
the comments were not based on a preliminary view of the trial evidence, we cannot
conclude that the district court abused its discretion in rejecting the Plaintiffs’
arguments that they were denied the right to a fair trial based upon the juror affidavits
submitted for review.
{54} 	After reviewing the district court’s decisions, we conclude that the district court

37
erroneously reviewed and considered all but one portion of the juror affidavits. Based
on our review of the admissible portion of the affidavits addressing the possibility of
a juror’s comments that could be considered a predetermination of the final outcome
of the case, we affirm the district court’s denial of Defendant’s motion for a new trial
on that basis as well.
{55} 	We note that Plaintiffs’ brief in chief factually alleged that some of the
allegedly improper discussions of the evidence occurred in small groups outside the
presence of all jury members. This allegation arises from the affidavit of the alternate
juror who stated that “[d]iscussions would take place when other jurors were out of
the jury room.” 	Plaintiffs, however, did nothing to develop how or whether these
discussions involved deliberations, evidence, witnesses, testimony or exhibits.
Moreover, Plaintiffs did not address or distinguish this argument from their general
bias argument or specify the matters discussed outside the presence of the entire jury.
Plaintiffs did not argue that comments made in small groups were in violation of UJI
13-110 rather than permitted discussions of topics such as the weather, sports, family,
work, or a host of other unrelated topics that did not involve actual deliberation of the
case. 	As a result, we will not address this issue further. 	See State v. Ortiz, 2009-
NMCA-092, ¶ 41, 146 N.M. 873, 215 P.3d 811 (“Because the State failed to satisfy
its obligation to develop the circumstances and to specifically and fully argue the
points, we will not address those points on appeal.”); Headley v. Morgan Mgmt.

38
Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (asserting that the
appellate 	courts 	of 	New 	Mexico 	need 	not 	entertain 	inadequately 	developed
arguments); Joslin v. Gregory, 2003-NMCA-133, ¶ 8, 134 N.M. 527, 80 P.3d 464
(“We will not decide this case on a theory not explored or argued by the parties on
appeal.”); see also State v. Boergadine, 2005-NMCA-028, ¶ 34, 137 N.M. 92, 107
P.3d 532 (finding that the defendant did not adequately address two issues mentioned
only in brief headings).
CONCLUSION
{56} 	For the foregoing reasons, we affirm the judgment of the district court.
{57} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:

CELIA FOY CASTILLO, Chief Judge

MICHAEL D. BUSTAMANTE, Judge

39