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Filed Court of Appeals of New Mexico 2/6/2018 2:30:06 PM Office of the Clerk
Mark Reynolds
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
3 4 5 6 7| 8 and
Opinion Number: Filing Date: February 6, 2018 NO. A-1-CA-35001
ALFREDO MORGA, Individually and on behalf of the Estate of YLAIRAM MORGA, Deceased; and as Next Friend of YAHIR MORGA, Minor Child,
RENE VENEGAS LOPEZ, Individually and as the Administrator of the Estate of MARIALY RUBY VENEGAS MORGA Deceased; and GEORGINA LETICIA VENEGAS, Individually,
9 10 11 12 Plaintiffs-Appellees, 13 V. 14 FEDEX GROUND PACKAGE SYSTEM, INC., RUBEN'S 15 TRUCKING, LLC a/k/a RUBEN REYES a/k/a SHOOTER'S 16 EXPRESS TRUCKING, INC., the Estate of ELIZABETH SENA QUINTANA, and M&K'S TRUCKING, INC.,
17 18 19 20 21 22 23
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Francis J. Mathew, District Judge
L. Helen Bennett, P.C. L. Helen Bennett Albuquerque, NM
24| for Appellee the Estate of Ylairam Morga
1 2

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James F. Scherr
El Paso, TX

Scherr & Legate, PLLC

for Appellee Alfredo Morga

K.. Joseph Cervantes
Las Cruces, NM

for Appellee Yahir Morga

El Paso, TX
for Appellee the Estate of Marialy Ruby Venegas Morga

Rodey, Dickason, Sloan, Akin & Robb, P.A.

EFoward R Ricco

4|| Jocelyn Drennan
5] Jeff Croasdell

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Brenda M. Saiz

7|| Albuquerque, NM

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GARCIA, Judge Pro Tem.

4} This appeal is before us following a jury verdict for more than $165 million to
, and loss of consortium claims that arose
from a catastrophic automobile accident between a small pickup truck and a FedEx
transport tractor-trailer. Defendants assert that the district court erred in denying their
motion for

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Defendants argue that (1) the verdict was not supported by substantial evidence; and

(2) the jury’s verdict was tainted by passion, prejudice, partiality, sympathy, undue

district court erred in awarding prejudgment interest. This case presents an

opportunity to address important issues faced by the judicial system—-how do

damages and whether we should utilize mathematic ratios as an acceptable basis to

reduce damage awards in large verdict cases. We decline to utilize mathematic ratios

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denial of Defendants’ two post-trial motions, and accordingly, we affirm the jury’s

verdict. We also affirm the award of prejudgment interest.

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23 On June 22, 2011, at approximately 1:30 a.m., on the interstate between Las

Cruces and Deming, New Mexico, a combination tractor-trailer vehicle (the FedEx

Morga). Accompanying Ms. Morga was her four-year-old daughter, Ylairam Morga

(Ylairam), and nineteen-month-old son, Yahir Morga (Yahir). The FedEx truck was

contractors, and the actual driver for the FedEx contractors was Elizabeth Quintana
(Quintana) (FedEx, the FedEx contractors, and Quintana are collectively referred to
as Defendants). Ms. Morga was either stopped or barely moving on the right-hand
side of her traffic lane when the FedEx truck struck her vehicle from behind at sixty-
five miles per hour without slowing. The impact and its resulting injuries were severe,
with multiple fatalities occurring. Ms. Morga and Yiairam died, and Yahir was
seriously injured. Quintana also died as a result of the accident.

{3} Alfredo Morga, Ms. Morga’s spouse, brought suit against Defendants,
individually and as personal representative for his daughter, Ylairam, and as next
friend for his son, Yahir. Mr. Morga also asserted claims against Defendants for
personal injury and wrongful death. Ms. Morga’s father, Rene Venegas Lopez, as her

personal representative, brought suit against Defendants for wrongful death (Mr.

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as Mr. Lopez in his capacity as personal representative for Ms. Morga are referred to
in this opinion as Plaintiffs). Mr. Lopez and his wife, Georgina Leticia Venegas, also
intervened in the lawsuit (Interv

consortium resulting from the death of their daughter Ms. Morga. Prior to trial, FedEx

stipulated that it would “pay for any damages attributed to [FedEx] and the other

4} Attrial, Plaintiffs presented evidence of damages related to the wrongful death,
personal injury claims by Plaintiffs and also the loss of consortium claims by Mr.
Morga and Intervenors. Plaintiffs also asked
against Defendants. The jury found all Defendants negligent and liable for Plaintiffs’

claims. The jury apportioned fault for the accident as follows: FedEx (65 percent), the

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FedEx contractors and Quintana (10 percent each for

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Morga (5 percent). The jury awarded compensatory damages as follows:

For the wrongful death of Ylairam $61,000,000
For the wrongful death of Ms. Morga $32,000,000
For personal injury and the loss of consortium

for his mother, to Yahir $32,000,000

For emotional distress, resulting from physical
and psychological injury, and the loss of
consortium for his spouse and child,

to Mr. Morga $40,125,000
For the Joss of consortium of his daughter,
to Mr. Lopez $208,000

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For the loss of consortium for her daughter,
to Ms. Venegas $200,000
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No punitive damages were awarded by the jury

5} After the verdict was entered on January 24, 2015, the district court judge
presiding over the case was involved in an ex parte conversation with Plaintiffs’
counsel regarding potential counsel on appeal. Recognizing that the ex parte
conversation could be perceived as improper, the district court judge recused herself.
The case was reassigned to Judge Mathew to preside over all the post-trial
proceedings.

{6} Defendants moved for a new trial or remittitur of the damages award and
argued that the verdict was excessive. The district court denied both motions. The
court concluded that there was substantial evidence to support the verdict, that it was
not the result of passion, prejudice, a mistaken measure of damages, or other improper
factors, and that it would be inappropriate to substitute its judgment for that of the
jury. Plaintiffs then proposed a form of judgment that included an awar ‘d of
prejudgmentinterest. The district court held an evidentiary hearing on the motion and
subsequently ruled that, under NMSA 1978, Section 56-8-4(B) (2004), prejudgment
interest was warranted at an annual rate of 5 percent. Defendants filed a timely

appeal. While the appeal was pending before this Court, Intervenors settled their loss

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regarding Intervenors’ damage awards and loss of consortium claims.

DISCUSSION
i ~~ On appeal, Defendants do not assert any issues related to the jury’s
determination of liability, but only contested the jury’s award of compensatory

damages and the district court’s award of prejudgment interest.

rig 1 Fo oe. 2; a ed

Denial of Defendanis’ Motions for New

A. Standard of Review

8} Wereview the district court’s denial of Defendants’ motions for a new trial or

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remittitur for an abuse of discretion. See State v. Mann, 2002-NMSC-001, 7 17, 13

N.M. 459, 39 P.3d 124 (“[The appellate courts] will not overturn a trial court’s denial

of a motion for a new trial unless the trial court abused its discretion.”); Hanberry v.

a NM 4 a yah eT

Fitzgerald, 1963-NMSC-100, § 2, 72 N.M. 3

383, 384 P.2d 256 (applying an abuse of
discretion standard for the review of an appellant’s “claim that the verdict [was]
excessive, requiring a remittitur or a new trial”); Sandoval v. Baker Hughes Oilfield

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Operations, Inc. (Jose Sandoval), 2009-NMCA-095, { 13, 146 N.M. 853, 215 P.3d
791 (“The applicable standard in reviewing the denial of a motion for a new trial or

remittitur is [an] abuse of discretion.”). “[The] trial court abuses its discretion when

its decision is contrary to logic and reason.” N.M. Right to Choose/NARAL v.

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marks and citation omitted); see Talbott v. Roswell Hosp. Corp., 2008-NMCA-114,

q{ 29-30, 144 N.M. 753, 192 P.3d 267 (recognizing that a trial court does not abuse

7 enving a motion Lae a ne gadourinlaad i
in denying a motion for a new trial unless its decision was

“Soehitrary
CALULLLCL Y 4

its discreti on i
capricious, or beyond reason” (internal quotation marks and citation omitted)).
However, even when we review for an abuse of discretion, our review of the

application of the law to the facts is conducted de novo. Id.

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(9} Our appellate courts defer to the jury in awarding damages and also to the trial

court in its assessment of a motion for new trial or a motion te remit the amount of

damages awarded by the jury. See Ennis v. Kmart Corp., 2001-NMCA-068, § 27, 131
NM. 32, 33 P.3d 32 (“When a trial court denies a motion for a remittitur, we defer

to the trial court’s judgment. When the jury makes a determination and the trial court
approves, the amount awarded in dollars stands in the strongest position known in the
law.” (internal quotation marks and citations omitted)); see also Coates v. Wal-Mart
Stores, Inc., 1999-NMSC-013, 9 49, 127 N.M. 47, 976 P.2d 999 (recognizing the
appellate court’s reliance on the trial court because of its unique position “to observe
the witnesses and their demeanor as well as the jurors’ attitude during the trial”

whereas we review the record cold); Salopek v. Friedman, 2013-NMCA-087, { 30,

308 P.3d 139 (“In determining whether a jury verdict is excessive, we do not reweigh

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the evidence
jury’s verdict is presumed to be correct.” (internal quotation marks and citation
omitted)).

103} Defendants argue that such deference to th

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afforded in this particular case because Judge Mathew did not have the opportunity
to observe the proceedings first hand. Defendants therefore contend that a de novo
standard of review should apply. Defendants cite no authority to support their
contention that a judge duly appointed to proceed with an ongoing case, pursuant to
Rule 1-063 NMRA, is not entitled to the same discretion given to other trial judges
presiding over a case. We decline to devi:
precedent—recognizing an abuse of discretion standard of review—for four reasons.
First, this Court will not consider propositions that are unsupported by citation to
authority. See ITT’ Educ. Servs., Inc. v. N.M. Taxation & Revenue Dep't,
1998-NMCA-078, § 10, 125 N.M. 244, 959 P.2d 969. Second, although this standard

of review argument was presented as one based on inherent logic, this Court is bound

by Supreme Court precedent, including the appropriate standard of review to be

'Stating that “[ijf a trial or hearing has been commenced and the judge is
unable to proceed, any other judge may proceed with it upon certifying familiarity
with the record and determining that the proceedings in the case may be completed
without prejudice to the parties.”

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applied. See State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, {ff 20-22
135 N.M. 375, 89 P.3d 47 (stating that although the Court of Appeals is bound by
Supreme Court precedent, we may explain “any reservations [this Court] might harbor
over a more
informed position to decide whether to reassess prior case law”). We can only note
the potential logic of Defendants’ argument regarding applying a different standard
of review in the present case,
implemented by our Supreme Court. Third, although Judge Mathew was not in the
“unique position to observe the witnesses and their demeanor as well as the jurors’
attitude durit
with juries in the community,” which this Court stated is “an indispensable safeguard
built into our American civil jury system.” Sandoval v. Chrysler Corp. (James
Sandoval), 1998-NMCA-085,
made no objection below regarding Judge Mathew’s capacity or ability to fully
preside over the hearing for remittitur or a new trial.

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at} Inreviewing the actual evidence presented at trial, “we review the si ffi
of the evidence to support the verdict by examining whether the verdict is supported
by such relevant evidence that a reasonable mind would find adequate to support a

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citation omitted), “We review all evidence in the light most favorable to the verdict

and resolve all conflicts in the light most favorable to the prevailing party.” Jd.

(internal quotation marks and citation omitted).

B Analysis of the Evidence to Support the Jury’s Award
2} “The purpose of compensatory damages is to make the injured party whole by

compensating it for losses.” Cent. Sec. & Alarm Co. v. Mehler, 1996-NMCA-060,
4 11, 121 N.M. 840, 918 P.2d 1340. “A jury’s damages award will be upheld unless
it appears that the amount awarded is so grossly out of proportion to the injury
received as to shock the conscience.” Salopek, 2013-NMCA-087,: 31 (internal
quotation marks and citation omitted). This Court is required to consider two factors
in making the determination of whether a jury award is excessive. First, we consider
“whether the evidence, viewed in the light most favorable to the plaintiff,
substantially supports the award.” Wachocki v. Bernalillo Cnty. Sheriffs Dep’t.,
2010-NMCA-021, 4 48, 147 N.M., 720, 228 P.3d 504 (alterations, internal quotation
marks, and citation omitted), aff'd, 2011-NMSC-039, 150 N.M. 650, 265 P.3d 701.
If any portion of the award is supported by substantial evidence, we must next
consider “whether there is an indication of passion, prejudice, partiality, sympathy,

undue influence or a mistaken measure of damages on the part of the fact[-Jfinder.”

Id. If the award does not satisfy either of these tests, then all or some portion of the

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See Jose Sandoval, 2009-NMCA-095, q 16. In the present
case, Defendants argue that the evidence did not support the award of damages and
that passion, prejudice, or sympathy affected the jury’s determination of the amount
of damages it awarded. However, even if the jury’s award is higher than the court
would have given, this is not sufficient to disturb a verdict. Jd. § 17: An award of
damages will be disturbed only in extreme circumstances. See Salopek,
2013-NMCA-087, { 30. “The proper approach is to examine the plaintiff’s evidence
related to damages and determine whether that evidence could justify the amount of
the verdict, or determine whether the verdict amount was grossly out of proportion
to the evidence of the plaintiffs [injury].” /d. {31 (alterations, internal quotation
marks, and citation omitted).

3} Although Defendants concede that the evidence at trial supported an award for
compensatory damages, they argue that the amounts awarded to Plaintiffs were
excessive for two reasons.’ First, Defendants argue that the awards for wrongful
death, bodily injury, and loss of consortium “far exceed any previous awards in this
state” and the evidence was insufficient to support such an excessive award. Second,

Defendants argue that because the awards for the economic injury make up such a

2 This concession only applied to the damages claimed by, or on behalf of,
Alfredo, Yahir. Ylairam and Marialy Morea. The concession did not apply to the

CAREER BAAD CELE CALE LT ATE AGLL YT AV NSE Fhe RRA NNN ARR NRE RAN Seppe ye Aa

settled loss of consortium claims by Rene and Georgina Venegas.

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“srossly disproportionate to the injury” and constitute legal error requiring a new trial
on the issue of damages. We recognize that Defendants’ arguments are both primarily
directed at whether the amount of the jury’s award for non-economic damages “is so
grossly out of proportion to the injury received as to shock the conscience” of this
Court. /d. (internal quotation marks and citation omitted).

1. Substantial Ev idenc ce Was Presen nted to Support the

(4) In the present
instructed regarding its duty to review the evidence and calculate Plaintiffs’ damages.

The jury was instructed as follows:

The guide for you to follow in determining fair and just damages is the
enlightened conscience of impartial jurors acting under the sanctity of
your oath to compensate the beneficiaries with fairness to all parties to
this action. Your verdict must be based on evidence, not on speculation,

guess or conjecture. You must not permit the amount of damages to be
influenced by sympathy or prejudice, or by the grief or sorrow of the
family, or the loss of the deceased’s society to the family.

They were further instructed to consider neither the property or wealth of the

beneficiaries nor that of Defendants in arriving at a verdict. We summarize the

sompensatory damages evidence related to each Plaintiff separately.

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a5} Thejury awarded Mr. Morga $40,125 million for compensatory damages. The
jury was instructed that if they should decide in favor of Mr. Morga, they must “fix
the amount of money which will reasonably and fairly compensate him” for injuries

related to the following elements of damages: past and future medical expenses; the

“nature, extent[,] and duration of the injury[;]” pain and suffering experienced as a

result of the injury; loss of enjoyment of life; aggravation of a pre-existing ailment
or condition; and emotional distress resulting from the death ofhis wife, Marialy, his

daughter, Ylairam, and the injuries to his son Yahir.
416} The evidence established that, prior to the accident, Mr. Morga suffered from
epilepsy which was controlled by medication. Mr. Morga’s epilepsy intensified after

the accident and became more frequent. Additionally, expert testimony established

that Mr. Mors

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| from posttraumatic stress disorder, major depressive
disorder, and that he would need at least a year of intensive psychotherapy and

psychiatric care. Dr. Angelo Romagosa, a medical doctor specializing in physical

nedicine and rehabilitation

testified that Mr. Morga would need $250,068 in
physician care, medications, and rehabilitation services in the future due to the

injuries suffered as a result of the accident.

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and companionship for the injuries and death of his family members, the jury heard
substantial evidence about this close young family and the irreparable personal loss
freshman in high school. The Morgas began dating and had their daughter, Ylairam,
during their senior year. Mr. Morga testified about the details of their early
various part-time jobs to support the family—as well
as Ms. Morga’s background in high school, youthful activities, and eventually taking
care of the home and their new baby, Ylairam. In October 2009 they had their second
rovided numerous details about their daily lives, close
relationship, buying a home, advancements at work, and plans for the future after
Yahir was born. Mr. Morga then testified to his recollection of when he went to the
t of the accident. He was told not to approach the vehicle where his
wife and daughter were still located. He then went to the hospital in El Paso, Texas,
where his son was taken following the accident and where he stayed for several days.
e was unable to return to work for months after the accident.

Mr. Morga also described how the accident severely affected him emotionally.

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gs} The jury compensated Yahir $32 million for past and future damages for

injuries he suffered as a result of the accident. The jury was instructed that should

reasonably and fairly compensate [him]” for injuries related to the following elements

of damages: past and future medical expenses; the “nature, extent{,] and duration of

distress resulting from the death of his mother, Ms. Morga.

919} At trial, the evidence showed that Yahir suffered a distal tibial metaphyseal

fracture, traumatic brain injury, a liver laceration, a right pulmonary contusion, and
other traumatic injuries. Yahir incurred $58,444.68 in medical treatment. Dr.

Romagosa testified that Yahir would need $417,926.47 in future medical care.

Additionally, Dr. King testified that Yahir would be at an “increased risk for
psychological difficulties down the road due to the early loss of his mother and

sister.” After the accident, Yahir regressed in his use of speech and had to see a

afraid and crying. Ms. Morga’s older sister, Rebecca Brown, also testified regarding

the relationship between Yahir and his mother prior to the accident.

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20} The jury compensated the Estate of Ylairam $61 million for her wrongful
death. The jury was instructed that if it were to find for the Plaintiffs, it “must then

ix the amount ofm

following elements of damages: “reasonable expenses of funeral and burial{;] lost

earning capacity, and the lost value of household services; [t]he value of her lost life;

or default.”

21} Ylairam was only four years old at the time of the accident. At trial, Plaintiffs

with her family for the jury to consider in determining the amount of damages to be

awarded for her death, including testimony by her father, Mr. Morga and various

d. Marialy Morga

22} The jury awarded the Estate of Ms. Morga $32 million for her wrongful death,

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fair and just for [her] life,” including the following the elements of damages: “[t]he

reasonable expenses for the funeral and burial; [t]he lost earning capacity and the

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circumstances attending the wrong
or default; [and t]he loss of guidance and counseling to the deceased’s minor child.”
23} Attrial, specific evidence was presented regarding Ms. Morga’s life so that the
jur
death. Ms. Brown testified about Ms. Morga’s early life, her family and home in El

Paso, Texas, as well as her personality and interests. Ms. Brown also testified

mother, as well as an attentive daughter and wife. Mr. Morga also testified about his

relationship with his wife, buying their first home, raising their two children, and their

planning to get her graduate equivalency degree, and someday obtain her
cosmetology degree.
The Evidence Su

24} Defendants’ arguments regarding the sufficiency of the evidence are, at their

core, solely objections to the jury’s large awards for non-economic injuries to

as insufficient or erroneous. Defendants do not dispute that the non-economic injuries

and damages incurred by Plaintiffs are unique, intangible, and difficult to quantify in

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value of these non-economic injuries, including pain and suffering, and the loss of

life. See James Sandoval,1998-NMCA-085, §§ 13-14 (The amount of awards

by law to ascertain what is just compensation, and, in the final analysis, each case

must be decided on its own facts and circumstances. . . . In addition, the trial judge’s

experience with juries in the community provides an indispensable safeguard built
into our American civil jury system.” (internal quotation marks and citation omitted)).

25} In this case, Defendants made a strategic decision to entrust the jury with the

going so far as to exclude Plaintiffs’ economist from providing testimony regarding

“specific damages for the value of a statistical life[,|” including “any numbers

offering a benchmark value as to human life.” Defendants’ counsel specifically told
the jury, “ Iam not going to submit to you a number, because I agree the value of

life—I don’t want to insult anybody about the value of life in this case. But you have

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agree that the damage awards in this case were very large. However, when an

experienced district court judge, who is familiar with juries in his community,

nd evaluates a motion for new trial and a motion for

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undisputed evidence into something illogical or insufficient. Furthermore, although

Defendants were afforded an opportunity to present evidence or testimony at trial to

damages, Defendants specifically chose not to do so. Under our discretionary

standard of review, Plaintiffs presented sufficient evidence to support the jury’s right

to perform its unique function—award all compensatory damages, including any non-
economic damages for pain and suffering and loss of life that were incurred by

Plaintiffs. Proper instructions were given that describe the factors a jury must

consider in making its compensatory damage awards. We

an only interpret
Defendants’ appellate argument to effectively require the appellate courts to establish

a threshold or an absolute financial limit on the value of life, despite the district court

f that is

and the jury’s best efforts to fulfill their assigned duty to quantify something
legally unique, intangible, and difficult to measure. We refuse to implement such a

legal threshold or limit. Based upon the evidence presented at trial and the arguments

presented for post-trial review, the district court did not abuse its discretion in
denying Defendants’ motions for a new trial or remittitur on the grounds of

insufficient evidence to support the damage awards for Plaintiffs’ non-economic

imuries
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2. Comparison to Similar Verdicts in Other Cases Will Not be Applied to
, ; .
Develop Defendants’ Sufficiency of the Evidence Argument
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26; Defendants’ argument centers on the awards for wrongful death, pain and

suffering, and emotional distress damages, all of which are non-economic and cannot

be determined by any fixed standard. See Baca v Baca, 1970-NMCA-090, { 28, 31

79D 944007
(40 4U 777

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and, as in personal injury cases, wide latitude is allowed for the exercise of the
judgment of the jury in fixing the amount of such an award.”). Instead, a jury is given
s. See id.;

1998-NMCA-085, § 13 (recognizing that “there can be no standard fixed by law for

measuring the value of pain and suffering” (omission, internal quotation marks, and

e7 Defendants ask this Court to compare the amount of damages awarded in this

case to other similar cases and cite to our Supreme Court’s analysis in Vivian v.

tolteann Tynela A Santa ©
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comparisons are “helpful” to determine whether a verdict is excessive.

1961-NMSC-093, § 11, 69 N.M. 6, 363 P.2d 620 (emphasizing “that each case must

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consideration of other verdicts and a comparison of the facts and circumstances is

helpful? We do not consider Vivian helpful toward providing guidance in the

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the facts in this case. Vivian involved a workplace injury where, after a review of the

evidence, our Supreme Court ultimately determined that “[i]t would serve no useful

remittitur and a new trial limited solely to the issue of damages. Jd. J 1-2, 25-26.

Second, Defendants have failed to cite to any authority where a court conducted an

damage award to a lesser amount. Third, Defendants conceded at oral argument that

they failed to identify in the record and did not otherwise provide the district court or

argument for conducting a comparative analysis with those cases alleged to be

“similar.” Defendants’ counsel specifically stated that they were only “obligat[ed] to

under common community standards, and if the court is looking for numbers, [the

courts bear the obligation to] look to the court’s own case law and see. . . the
wrongful death damages and verdicts that have been reported [over the last ten

years.|” Fourth and finally, Defendants do not dispute or attack any of Plaintiffs’

evidence regarding both economic and non-economic damages.

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28} Instead, this Court has continued to em
on its own facts and circumstances.” James Sandoval, 1998-NMCA-085, § 13

(internal quotation marks and citation omitted). We have also questioned the

usefulness of compa

in other cases, See Jose Sandoval, 2009-NMCA-095, 18 (noting that “[wje are
skeptical about the usefulness of comparing awards for pain and suffering in other

cases”); Robinson v. Mem’l Gen. Hosp., 1982-NMCA-167, § 20, 99 N.M. 60, 653

P.2d 891 (stating that the defendant’s request that the court compare the verdict
awarded to other cases was improper because “the question of excessive damages

must be determined from the evidence in [each] case”); Sweitzer v. Sanchez,

1969-NMCA-055, 9 5, 80 N.M. 408, 456 P.2d 882 (stating that what this Court may

have done in other cases was of “no consequence [because] the question of prejudice

and... the measure of damages must be determined from the evidence in [each] case”

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(internal quotation marks, and citation omitted)). We recognize that our Supreme

Court has upheld a district court’s discretion in granting a substantial remittitur to a

jury’s damages verdict, for a claim of emotional distress, when no economic damages

were offered into evidence. See Nava v. City of Santa ke, 2004-NMSC-039, J 16-20,
136 N.M. 647, 103 P.3d 571 (holding that the remittitur of the amount awarded to a

plaintifffor emotional distress was upheld on a comparative basis where very specific

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factual findings were issued by the district court, there was a lower amount
by the plaintiff at trial, and due to the lack of any evidence of physical harm).
However, this case is very distinguishable from Nava, both factually and
procedurally. In the present case, undisputed economic damages were presented and
awarded to Plaintiffs, and this Court is now being asked to reverse, not affirm, the
remittitur decision issued by the district court—a completely opposite analysis.

293 Defendants simply argue that the damage awards for wrongful death ar
of millions of dollars greater than any awards in similar cases and far exceed any
previous award in this [S]tate for wrongful death or comparable loss” and “far
outstrips any prior verdict.” Yet Defendants concede that they did not bring any
evidence of other non-economic damage award cases to the attention of the district
court for comparison. Even ifa comparative verdicts analysis would be helpful to this
Court in
analysis or to make any connection to the evidence in this case. This Court is under
no obligation to go outside the record to investigate and develop Defendant’s
argument about greatly exceeding all prior damage awards in this State. See Santa Fe

Expl. Co. v. Oil Conservation Comm’n, 1992-NMSC-044, 9 11, 114.N.M. 103, 835

P.2d 819 (stating that where a party fails to cite any portion of the record to support

—

to review an argument that is not adequately developed.”); see also Rule

12-318(A)(3) NMRA (requiring briefs in chief to contain “a summary of proceedings,

disposition in the court below, and including a summary of the facts relevant to the

issues presented for review[, which] summary shall contain citations to the record

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ictual representation”

(emphasis added)). Defendants have neither identified any of Plaintiffs’ evidence

deemed insufficient to support the jury’s award of non-economic damages nor

As aresuilt, this Court will not undertake Defendants’ offer to search the entire record

and then search the existing universe of severe injury cases in an attempt to compare

the substantive

-vidence and damage awards in
substantive evidence and damage awards in the present case. See Kepler v. Slade,

1995-NMSC-035, § 13, 119 N.M. 802, 896 P.2d 482 (“Matters outside the record

3. | AComparison of Non-Economic to Economic Damages is Unsupported by

our Case Law

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30} Next, Defendants argue that because the economic damages proven at trial

make up a “minuscule part” of the total amount of damages awarded, the total

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that occurred. We begin by recognizing that this Court has specifically rejected any

fixed, mathematical formula as the best way to arrive at a damage award for pain and

fixed by law for measuring the value of pain and suffering.” James Sandoval,

1998-NMCA-085, § 13 (omission, internal quotation marks, and citation omitted).

that is as fair as humanly possible under the facts and circumstances of a given case.”
Id. ¥ 16.

31; We leave any continuing concerns about the use of mathematical formulas to
establish a legal basis for addressing excessive jury verdicts to the public and its
ongoing debate with the legislative branch about the American judicial system and
ee id. { 17 (recognizing the public
criticism and ongoing debate regarding excessive jury verdicts). Even in James
Sandoval where “[tJhe [trial] judge acknowledged that the jury verdict shocked the

conscience of the court” we remanded for further consideration rather than undertake

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our own calcula
Defendants’ argument that the appellate courts should use fixed mathematical

formulas to establish legal error and as the proper basis for reversing a Jury’s non-

B. The Verdict is Not the Result of Jury’s Passion or Prejudice
32} Defendants argue that we may simply “infer” that the jury was improperly
rom the verdict itself and that it 1s “not necessary

to point to trial error as a cause.” However, we disagree that our case law allows us

to infer improper passion or prejudice simply because the verdict is large and

Supreme Court stated that a verdict was “so grossly excessive as to require an
inference that it resulted from passion, prejudice, partiality, [and] sympathy|.]”
1961-NMSC-093, ¥[ 14.

having undertaken a “careful review of the evidence of pain, suffering, loss of

earnings, and physical injuries” and holding that there was “no substantial evidence

evidentiary review for this Court to analyze in the present case, and we shall not

undertake such a review or consider such an argument that is not developed on

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courts need not consider its argument on appeal); Corona, 2014-NMCA-071, 28
(“This Court has no duty to review and argument that is not adequately developed.”).
333 We also disagree with Defendants’ argument that because the jury awarded
sums “far greater” than requested by Plaintiffs, we may legally infer that passion and
prejudice played an improper role in the jury’s determination of damages. This
argument mischaracterizes Plaintiffs’ statements during closing argument as a request
for a specific amount of monetary damages. Counsel for Ms. Morga’ s estate proposed
to the jury that when considering damages for the loss of Ms. Morga’s life, it could
ng a value ona person’s individual days of life. Counsel hypothetically

stated, “[i]sn’t it worth $500 a day for the enjoyment of your life, for the enjoyment

of life that [Ms. Morga] has been deprived of? When you value life, I ask you to give

ons of her life expectancy a: vay for you to try and
measure and place a value on something that we recognize . . . can’t be valued.” We
perceive this hypothetical suggestion to be general guidance to the jury for
its own method for arriving at a valuation for Ms. Morga’s life. The fact

that the jury chose its own method or a higher daily value for the enjoyment of life

when it awarded damages different from the hypothetical example suggested by

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that the jury’s damage awards were the result of passion and prejudice.

4) Wenow turn to the specific incidences occurring during trial that Defendants

argue provoked passion or prejudice in the jury. These incidences include Mr.
Morga’s trial testimony and what Defendants characterize as “misconduct by

Plaintiffs’ counsel” in closing argument.
1 Mr. Morga’s Testimony
35} Defendants argue that Mr. Morga’s testimony was “emotionally wrenching”

when it addressed the sequence of events involving when he was informed of the
accident, arrived at the scene, and observed the vehicle. Defendants concede that Mr.

Morga’s testimony was “an unavoidable aspect of the trial” but insist that the

testimony “easily could have moved the jury” to award excess damages based on
improper passion or prejudice
36} Mr. Morga’s testimony was not objected to by Defendants. Counsel elicited

testimony from Mr. Morga concerning his wife and children, as well as his
n of the week leading up to the accident. Mr. Morga became visibly upset
when asked how he learned about the accident and the district court ordered a recess

break for the jury. Plaintiffs’ counsel was then allowed to use leading questions on

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the district court took a second recess, and it

ordered counsel to move on to another subject. Defendants’ counsel commented,
“Ti]t’s not necessary to make [Mr. Morga] cry to the jury, I’m sorry.” Although the
district court expressed concern with Mr. Morga’s health and the impact of the
testimony, there is no indication in the record that the district court believed improper
prejudice had occurred from his testimony. Mr. Morga returned to the stand and
completed the direct and cross-examination without any further breaks.

37 Throughout Mr. Morga’s testimony, Defendants did not ask the district court
to strike any of his testimony, and Defendants never requested any kind of limiting
ion or admonition to the jury. Prior to deliberations, the jury was properly
instructed that sympathy was not to play a role in the jury’s determination. Without
more than a witness crying during testimony that both parties expect to be visibly
onal, we cannot presume that the jury violated its oath and failed to follow the
jury instructions. See Norwest Bank N.M., N.A. v. Chrysler Corp. ; 1999-NMCA-070,
440, 127N.M. 397, 981 P.2d 1215 (stating that the appellate courts “assume the jury
h instructions absent evidence to the contrary”). Mr. Morga’s testimony

was understandably emotional, but there is no indication in the record that the

testimony incited improper passion or prejudice within the jury. See State v. innell,
1984-NMSC-064, 23, 101 N.M. 732, 688 P.2d 769 (noting that the introduction of

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testimony was neither prejudicial nor sufficient to arouse the passion of the jury and
require a mistrial); State v. Garnenez, 2015-NMCA-022, {J 25-26, 344 P.3d 1054

(holding that a pause in trial and the removal of a member of the courtroor

who became emotional and cried during upsetting testimony did not mandate a

mistrial be declared or prevent the jury from rendering a fair and impartial verdict).

9] Closine Aroument
losin oe Argument
as; Next, Defendants argue that Plaintiffs’ closing argument caused the jury to be

infected by improper passion or prejudice. Defendants point to three incidences in

unused by any witness at trial, depicting the crushed vehicle in which Ms. Morga’s

body was partially visible; (2) what Defendants characterize as Plaintiffs arguing to

the jury that FedEx was attempting to “shift responsibility for the accident to its
contractors”; and (3) Plaintiffs’ “justice needs to be ignited” comment related to

punitive damages. Defendants argue that the above incidents during closing

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improper passion or prejudice by the jury and causing an “excessive award of

damages.”

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39 Webegin ourreview by emp
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specific objection[, one] that apprised the district court of the nature of the claimed
error and that allows the district court to make an intelligent ruling thereon” in order

to preserve an issue

for appeal. Jose Sandoval, 2009-NMCA-095, § 56; see Rule 12-

321(A) NMRA (requiring that “it must appear that a ruling or decision by the trial
court was fairly invoked” in order to preserve a question for review). The purpose of
the preservation rule is “to specifically alert the district court to a claim of error so
that any mistake can be corrected at that time, ... to allow the opposing party a fair
opportunity to respond to the claim of error and to show why the court should rule
against that claim, and... to create a record sufficient to allow this Court to make an

informed decision regarding the contested issue.” Jose Sandoval, 2009-NMCA-095,

4 56. Defendants now ask us to distinguish the analysis we employed in Jose

Sandoval,

40} In Jose Sandoval, this Court declined to consider alleged instances of

misconduct by the plaintiff that were argued to be the cause of improper passion or

trial. /d. 4] 60-72.

biection at trial
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However, this Court noted that

[i]Jn cases involving improper closing argument, as when counsel go
outside the record[,] we reserve the right in a proper case to reverse the
judgment and award a new trial even if objection be not made. However,

this. rule is to only be applied as a last resort and is not to be applied

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unless we are satisfied that the argumen

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flagrant and glaring in fault and wrongdoing as to leave the bounds of
ethical conduct, such as going outside the record.

Id. § 57 (emphasis added) (internal quotation marks and citations omitted).

exception because they are “so flagrant and glaring in fault... as to leave the bounds

of ethical conduct[.]” Defendants also argue that our Jose Sandoval decision

are not compelling. A formal Court of Appeals opinion is controlling authority. See

Gulbransen v. Progressive Halcyon Ins, Co,, 2010-NMCA-082, | 13, 148 N.M. 585,

241 P.3d 183. Our reasonin Jose Sandoval is in line with the well-established rule

1ing in Jose Sandoy the

on preservation. 2009-NMCA-095, 4 57 (noting that “other than in Florida, no other

courts in this country allow improper argument to be raised for the first time on

anneal in civil cases. but notine that in Griego v. Conwell 1950-NMSC-047,97 17, 54
aad sail inlet ALA WEY Ba es My kh RAMs Vides PLAY ALA SM Lat me Beall ¥ ee ee a Mh ker Po ee ee w 4 Il x 4
N.M. 287, 222 P.2d 606 our] Supreme Court warned that it would [reserve the right

to] do so, but it has never carried out its threat” Gnternal quotation marks and

or decision by the trial court was fairly invoked” in order to preserve a question for

review); see also Berkstresser v. Voight, 1958-NMSC-017, { 10, 63 N.M. 470, 321

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to preserve a question for review{,] a litigant must invoke a ruling thereon”).
(413 Finally, we disagree with Defendants that the alleged incidents of misconduct
by Plaintiffs, either individually or collectively, are “so flagrant and glaring in fault
and wrongdoing as to leave the bounds of ethical conduct” or rise to the level of
flagrant or fundamental error. Jose Sandoval, 2009-NMCA-095, 4 57; see Estate of
Gutierrez ex rel. Jaramillo vy. Meteor Monument, L.L.C.,2012-NMSC-004, 49 32-33,
274 P.3d 97 (“The fundamental error doctrine is codified in Rule [12-
321(B)(2)]....This rule shall not preclude the appellate court from considering in its
ion, questions involving . . . fundamental error. . . . [T]his Court has applied
the doctrine in civil cases under the most extraordinary and limited
circumstances.” (alterations, internal quotation marks, and citation omitted)). Despite
Defendants’ failure to preserve an objection to these particular closing arguments by

Plaintiffs, we shall also discuss the merits of each allegation of misconduct and

explain why we conclude that no legal err was established by Defendant.

(423 The district court ruled that the photograph of the crash site could be used at

trial if a “yellow sticky” note was placed to cover what appeared to be a human arm

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-, Defendants made no objection to the error and counsel for Defendants
acknowledged that he chose not to object to this error during the closing argument.
After Plaintiffs rested and the jury was excused for a recess break, Defendants’
counsel mentioned the absence of the “yellow sticky” note. The district court
acknowledged the missing note covering the designated portion of the photo and
assured the parties that the photo would not go to the jury during deliberations as a
solution to the issue now being brought to the court’s attention. No further objection
was made to this decision by the district court to address the “yellow sticky” note
issue.

43} Defendants argue that Plaintiffs’ use of the photograph is an example of
“flagrantly improper conduct” that could not be cured by an instruction from the
district court. However, Defendants have failed to show that Plaintiffs’ use of the
photograph was so glaring in fault as to leave the “bounds of ethical conduct” or that
the district court’s ruling to address the issue rose to the level of fundamental error.
See Grammar v. Kohlhaas Tank & Equip. Co., 1979-NMCA-149, { 38, 93 N.M. 685,
604 P.2d 823. There is no indication in the record that: (1) Plaintiffs’ use of the
photograph without the “yellow sticky” note was intentional; (2) any comment was

made to the jury by Plaintiffs’ counsel regarding the portion of the photograph that

was intended to be covered and excluded by the “yellow sticky” note; or (3) the

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it inflicted flagrant and incurable prejudice upon the jury. See Allen v. Tong, 2003-
NMCA-056, 99 35, 39, 133 N.M. 594, 66 P.3d 963 (holding that counsel’s statement

in closing argument, “if the jury found [the dlefendant was not negligent, then that

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will be the end of this trial and your job will be over, and you will get back to your
jobs and families[,]” was not “a flagrant or glaring wrongdoing that requires [this
Court] to invoke fundamental error? (internal quotation marks omitted)).
Furthermore, the district court addressed the issue on the record and recognized that
any potential harm appeared very minor at that point, stating “I seriously doubt [the
jury] recognized that as an arm. If you hadn’t told me it was an arm when we first
discussed it, I don’t think I would’ve known that.” Despite Defendants’ assertion at
oral argument that this highly prejudicial photograph is part of the record on appeal,
it was not provided as part of the record for our independent review. As a result, we
have no independent basis to question the district court’s analysis and resolution of
the issue at trial. See Williams v. Mann, 2017-NMCa-012, 7 19,388 P.3d 295 (“Upon
ption is indulged in favor of the
correctness and regularity of the trial court’s decision, and the appellate court will
indulge in reasonable presumptions in support of the order entered.” (internal

quotation marks and citation omitted)). Without any further indication of unethical

conduct or fundamental error, the use of this photograph will not be recognized as
causing the jury to render an improper verdict based on passion or prejudice.

b. Comments Related to Allocation of Fault

{44} Defendants argue that Plaintiffs’ counsel made improper comments in closing
argument related to FedEx’s fault and responsibility for the damages incurred by
Plaintiffs. First, Defendants argue that Plaintiffs’ counsel tried to shift responsibility
for the accident to its contractors, even though FedEx had agreed to pay for any
damages attributed to its contractors or Quintana. Second, Defendants contend that
Plaintiffs’ comment-——~“it’s happened before”---regarding other FedEx accidents
defied Defendants’ motion in limine to exclude all reference to other accidents
involving Defendants. However, after reviewing the complete record of Plaintiffs’
closing argument, we interpret Plaintiffs’ comment differently. Comparative fault was
a specific issue at trial and the parties disagreed about how the jury should allocate
fault between the various Defendants. Plaintiffs argued that FedEx was attempting to
allocate fault to their contractors and had used similar arguments in the past.
Although FedEx assumed liability for all Defendants in this matter, the jury was still
required to apportion fault amongst each Defendant. Defendants did not object to the

jury verdict form that listed all four Defendants separately, as well as Ms. Morga, for

the allocation of comparative liability. Because Defenda

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ing or the jury instructions, we must apply a fundamental
error standard of review. See Allen, 2003-NMCA-056, ff 33-34 (noting that a failure
to properly object to issues regarding the instructions tendered to the jury will only

a basis of fundamental error), Defendants have again failed to

be reversed on a
convince this Court that Plaintiffs’ comments were so glaring in fault as to leave the
“bounds of ethical conduct” or that the error rose to the level of fundamental error.
Grammar, 1979-NMCA-149, § 38. Where the allocation of comparative fault was a

proper function to be decided by the jury, Plaintiffs’ comments would not be

unethical or otherwise create any inference that the jury rendered an improper verdict.

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Argument Regarding the Need to Ignite Justice

45} Defendants objected to one fragment of Plaintiffs’ closing argument in
particular, the statement that “they don’t want to show the pictures to inflame the
[jJury. Well, sometimes justice needs to be ignited.” Defendants argue that this type
of comment encouraged the jury to follow their passion and misled the jury by
implying that Defendants sought to suppress photographic evidence. Again, when

ead in the full context of closing argument, Plaintiffs’ statements were not outside

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the scope of proper argument, especially where Plaintiffs asked the jury to punish

Defendants for their conduct and punitive damages were an issue the jury was

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or as correct statements of the law, if contrary to the law given to you in [the jury]
instructions.” We conclude that if Defendants believed that Plaintiffs’ closing
al, unethical, or going outside the record, they should
have timely and specifically objected at trial, requested an appropriate curative
instruction or admonishment, and given the district court the opportunity to correct
any error. See Jose Sandoval, 2009-NMCA-095, J 58 (“We believe that if defense
counsel had timely and specifically objected and had requested and received an
appropriate curative instruction and/or admonition, the issue would not now be in this
Court.”); Grammar

1979-NMCA-149, 9 34 (“The objection to alleged improper

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argument must be specified and made known to the [trial] court so that the court may
intelligently rule thereon. When that is not done, the proposition is not properly
in opportunity to evaluate
Plaintiffs’ “justice needs to be ignited,” closing argument in the context ofa potential

award of punitive damages, we neither view such an argument as being so glaring in
fault as to leave the “bounds of ethical conduct” nor do we recognize it to rise to the

level of fundamental error. See Grammar, 1979-NMCA-149, § 38 (stating that this

Court will only consider the narrow exception to the preservation requirement as a

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last resort” and only if the plaintiffs lawyer goes outside the actual record in a
flagrant and glaring manner so as to “leave the bounds of ethical conduct”).

C. TheJury’s Award Was Not the Result of a Mistaken Measure of Damages
(46) Finally, Defendants argue again that we may infer from the size of the jury’s
verdict that it applied a mistaken measure of damages. See Hanberry,

1963-NMSC-100, ] 32 (stating that after a careful review of the evidence, the award

was so extremely excessive “that it is not truly supported by th
therefore must indicate that the jury was mistaken in the measure of damages”).
Defendants assert that “the jury mistakenly applied a punitive measure of damages
in awarding compensatory damages.” We disagree that such an appellate inference
can be drawn exclusively from the size of a damages verdict or the evidence
presented for an award of punitive damages. We emphasize that Defendants have the

ants, to demonstrate from the record that the jury was mistaken

in its award. See Coates, 1999-NMSC-013, [51 (stating that in appealing a denial of
a remittitur, the appellant “bears the burden of showing that the record supports its
here was error in the verdict” or “that the verdict (i. e., damage

awards) was infected with passion, prejudice, partiality, sympathy, undue influence,

or some corrupt cause or motive” (internal quotation marks and citation omitted)).

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punitive damages in this case. Defendants argue that although the jury awarded no
punitive damages, the amount in compensatory damages awarded—$165 plus
million—is close to what was requested for punitive damages—$140 million. In the

review of the special verdict form submitted to the jury, Judge Mathew specifically

noted, “[t]he special verdict form indicates clearly that the jury understood that they

were returnin

ict for compensatory damages.” Furthermore, there are
indications from the poll conducted of the jury following the actual verdict that
several jurors wanted to give additional punitive damages, in addition to the amount
awarded for compensatory damages. Defendants even stated on the record, “probably
a couple of them wanted [to give] punitives” and the trial court agreed with
Defendants’ observation of the issue and comment. Based upon this clear record,
argument that the jury mistakenly applied a punitive measure of damages

to award compensatory damages is not supported. See id. ] 52 (recognizing that the

defendants had not “borne [their] burden of proving error”); Baxter v. Gannaway,

1991-NMCA-120

oo 2 eee 3

q 18, 113 N.M. 45, 822 P.2d 1128 (recognizing that when “a jury
makes an award which covers each element of damages,” it is not our place to “say

as a matter of law the jury verdict is founded upon a mistaken measure of damages”).

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Prejudgment Interest
48}. The district court had the discretion to award prejudgment interest. Section
56-8-4(B); Coates, 1999-NMSC-013, § 55 (“The trial court has the discretion to
1 award prejudgment interest.”); Smith v. McKee, 1993-NMSC-046, 47, 116 N.M. 34,
859 P.2d 1061 (stating that when the trial court’s decision to award prejudgment
interest is discretionary, any award shall be reviewed for an abuse of discretion and
7\|\reversed only where its decision “is contrary to logic and reason”). Section 56-8-4(B)
allows the trial court, in its discretion, to award interest of up to 10 percent after

considering, among other factors, the following:

(1) if [Plaintiffs were] the cause of unreasonable delay in the
adjudication of [Plaintiffs’] claims; and

2) if [Defendants] had previously made a reasonable and timely offer
f settlement to [Plaintiffs].

141“Prejudgment interest serves two purposes, promoting early settlements and

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compensating persons|.]” Coates, 1999-NMSC-013, 4 55. “Interest is awarded to

make the tort victim whole, and has no bearing on the question of punishing the

493 On March 31, 2015, the district court held its hearing on the issue of
prejudgment interest and specifically limited the evidentiary presentation to factors

within the elements of Section 56-8-4(B). Plaintiffs presented evidence of the

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possibility for a significant damage award resulting from the death and injury to
Plaintiffs and that Defendants made one offer for settlement during the only
mediation prior to trial. Defendants offered no witnesses at the hearing but relied
upon the evidence that was attached to their motion to deny prejudgment interest.
Defendants’ motion argued that because Plaintiffs refused to accept a provision for
confidentiality as part of any settlement agreement, “there was no point to trying to
negotiate a potentially mutually acceptable settlement amount.” Based upon the
evidence presented, the district court concluded that there was “no evidence of delay
in this case by any party” but that “Defendants did not make reasonable or timely
offers of settlement.” The district court’s order further concluded that “the refusal on
the part of . . . Plaintiff[s’] counsel to engage in settlement discussions which
involved any form of confidentiality agreement was not reasonable.” The district
court then balanced Plaintiffs’ refusal to settle on a confidential basis with what it
termed as Defendants’ “complete lack of appreciation or concern about the potential
result of a trial,” to conclude that prejudgment interest was warranted in the amount
of 5 percent per annum—half the allowable rate under the statute. See § 56-8-4(B)
(giving the district court the discretion to allow interest up to 10 percent from the date

of the complaint).

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50} De endants now assert that their “liability was nota
that “the facts were not clear-cut in Plaintiffs’ favor.” Defendants also argue that the
trial court abused its discretion in granting prejudgment interest by ignoring
“Idlifficult legal issues” and “thorny issues of causation, comparative fault, and
[damages].” Sunnyland Farms, Inc. v. Cent. N.M. Elec. Co-op., Inc.,
2013-NMSC-017, § 62, 301 P.3d 387. We disagree. Defendants’ argument that its
tight to dispute Hability and the complexity of the case precluded its obligation to
make a reasonable and timely settlement offer is not a proper reading of the statute.
Although the complexity of a case may preclude reaching a settlement, Section
56-8-4(B) requires Defendants to make a reasonable and timely offer of settlement
in order to avoid an award of prejudgment interest, irrespective of complexity.

Furthermore, at the hearing to address prejudgment interest, Defendants conceded

lict in favor of Plaintiffs.

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51) Finally, Defendants argue that Plaintiffs’ refusal to make a settlement offer that
included a provision for confidentiality was unreasonable and the district court’s

reasonableness should control the issue of

acknowledgment of Plainti
prejudgment interest. In fact, Defendants argue that it was pointless for Defendants

to make a reasonable settlement offer despite the district court’s additional ruling that

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on

parties to actually reach a settlement, it only requires that Defendants make a
reasonable settlement offer. See § 56-8-4(B). If no reasonable settlement offer was
made by Defendants, other settlement conditions imposed by Plainti
ofmany discretionary matters for the district judge to consider. /d. The district court’s
discretion in awarding prejudgment interest allowed the court to evaluate both
parties’ actions that caused any failure by Defendants to make areasonable settlement
offer and then allocate an appropriate level of prejudgment interest accordingly. Here,
the district court’s conclusion that Defendants’ sole settlement offer was unreasonable
and their “complete lack of appreciation or concern about the potential results of a
trial” is a logical conclusion that is supported by the record. Selecting an intermediate
level of prejudgment interest-—5 percent—is also a reasonable and logical
accommodation under the circumstances where Plaintiffs refused to accept

confidentiality as a settlement condition. As a result, the district court did not abuse

its discretion by awarding 5 percent prejudgment interest under the circumstances

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CONCLUSION

2) For the foregoing reasons, we affirm the district court’s denial of Defendants’
motions for a new trial or remittitur. We also affirm the district court’s grant of
prejudgment interest.

53} ITISSO ORDERED.

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TIMOTHY L,GARCIA, Judge Pro Tem

WE CONCUR:

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2M. MONICA AMOR es

February 6, 2018- Alfredo Morga v. Fedex Ground, No. A-1-CA-35001

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