May 29, 2009 – Donald E. Kilgore and Carole A. Kilgore v. Fuji Heavy Industries LTD., Takata Corporation, and Takata Seat Belts Inc., No. 27,470

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: May 29, 2009

NO. 27,470

DONALD E. KILGORE and
CAROLE A. KILGORE,

Plaintiffs-A ppellants,

V.

FUJI HEAVY INDUSIRIES LTD.,

TAKATA CORPORATION, and

TAKATA SEAT BELTS INC.,
Defendants-A ppellees,

and

SUBARU OF AMERICA, INC.,
Defendant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Stephen D. Pfeffer, District J udge

Peters & Lister, P.C.
Darrel Peters
Dearbom, MI

Comeau, Maldegen, Templeman & Indall, LLP
Grey Handy
Sharon W. Horndeski
Santa Fe, NM
for Appellants
Bowman and Brooke LLP
Thomas M. Klein
Phoenix, AZ
Rodey Dickason Sloan Akin & Robb, PA
Patrick M. Shay
Jeffrey M. Croasdell
Albuquerque, NM
for Appellees Fuji Heavy Industries Ltd.
and Takata Corporation
Bowman and Brooke LLP
David R. Kelly
Minneapolis, MN
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Martha G. Brown
Albuquerque, NM
for Appellee Takata Seat Belts Inc.

OPINION
SUTIN, Judge.
{1} 	This case centers on a defective seatbelt buckle claim in a vehicle rollover
accident. Plaintiff Carole Kilgore was seriously injured. Plaintiff Donald Kilgore, her
husband, was driving. The trial resulted in a defense verdict. Plaintiffs tried this case
on the theory that the buckle design created a risk of accidental or inadvertent release,
recognizing that the precise identification of what depressed the seatbelt buckle
release button could never be known with certainty.
{2} 	More specifically, Plaintiffs sought to prove that the release button “was
needlessly and dangerously exposed and demonstrably susceptible to unintended
contact, opening the buckle and releasing the [seatbelt].” Their approach was to show
that “such inadvertent contact could come from a hand, an elbow, or a variety of other
objects loose in the passenger compartment of the car, which could have accidentally
contacted and depressed the exposed button during a rollover collision.” Plaintiffs’
theories of recovery presented to the jury were negligence and product liability.
{3} 	Plaintiffs moved for a new trial. The district court denied the motion without
a hearing. 	Plaintiffs assert reversible error in denying their motion for a new trial
based on claims of juror misconduct, improper comments in Defendants’ opening
statement, and two erroneous evidentiary rulings. We hold these claims do not require

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a new trial. On juror misconduct, we hold Plaintiffs failed to meet the preliminary
requirement that they show there was a reasonable likelihood that extraneous
information a juror received would have an effect on the verdict or on a typical juror
and thus that there was a reasonable possibility that the information prejudiced
Plaintiffs. We further hold that defense counsel’s opening statement comments do not
warrant a new trial. We also hold that the district court did not abuse its discretion in
excluding evidence of other incidents or in allowing a defense expert’s deposition
testimony that the buckle in question could arguably meet certain test requirements.
We therefore affirm the defense verdict.
{4} 	The record proper in this case consists of thirty-two volumes consuming 5366
pages. There are thirty-two separate transcripts of various proceedings. Experts and
other witnesses testified on the issues of negligence, product defect, and when, during
the rollover, Mrs. Kilgore may have suffered the permanent spinal cord injury for
which she seeks damages. 	Trial before a panel of twelve jurors took about three
weeks. 	The jury’s verdict was unanimous. 	Nothing presented to us in the briefs
indicates that this was not a fully and professionally tried case.
BACKGROUND
{5} 	Mr. Kilgore was driving a 1998 Subaru Legacy Outback wagon at the time of
the accident. Mrs. Kilgore was in the back seat behind Mr. Kilgore, and their seven-

3
year-old granddaughter was in the front passenger seat. 	All were wearing their
seatbelts. 	The car went out of control, rolled over, and landed upside down at the
bottom of an embankment. Mr. Kilgore and his granddaughter remained belted and
were hanging upside down, suspended in their seatbelts. They did not suffer serious
injuries. Mrs. Kilgore was found lying on the roof, facing up toward the sky, and was
not suspended by her seatbelt. 	No direct evidence was presented as to how Mrs.
Kilgore came to be unbelted.
{6} 	Plaintiffs sued Fuji Heavy Industries Ltd. (Fuji), which designed the car; and
Takata Corporation (Takata) and Takata Seatbelts, Inc. (Takata Seatbelts), which
designed and manufactured, respectively, the car’s seatbelt system. 	Plaintiffs
contended that the Takata AB buckle in the Subaru’s seatbelt system was negligently
designed, 	tested, 	and 	selected 	and 	was 	defective 	because 	it 	accidentally 	or
inadvertently unlatched during the rollover, resulting in a permanent spinal cord injury
that left Mrs. Kilgore a ventilator-dependent quadriplegic. Obvious questions for the
jury were at what point did the buckle release and what likely caused it to release. We
refer to Fuji, Takata, and Takata Seatbelts, together, as Defendants.
{7} 	The jury was instructed that to establish negligence on the part of Defendants,
Plaintiffs had the burden of proving that Fuji failed to exercise ordinary care in
designing, testing, or selecting the seatbelt system and that Takata failed to exercise

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ordinary care in designing and testing the seatbelt system. 	The jury was also
instructed that, to establish a claim of defective product on the part of Defendants,
Plaintiffs had the burden of proving that the seatbelt system created an unreasonable
risk of injury to Mrs. Kilgore and that the seatbelt system was defective when it
reached the user or consumer.
{8} 	The jury rendered a special verdict in favor of Defendants. 	The jury
specifically found that Fuji was not negligent in designing, testing, or selecting the
seatbelt system and that Takata was not negligent in designing or testing the seatbelt
system. The jury also specifically found that no negligence of Fuji or Takata was a
cause of Mrs. Kilgore’s spinal cord injury and related damages. In addition, the jury
specifically found that the seatbelt system in Plaintiffs’ car that was supplied by
Defendants was not defective. The verdict was rendered on September 29, 2006, and
the court entered a final judgment on the verdict and in Defendants’ favor on
December 11, 2006.
{9} 	A legal assistant for Plaintiffs’ counsel conducted an investigation into the
jury’s verdict from October through December 2006 that discovered a juror had
received extraneous information. 	Based on this discovery and also on alleged
prejudicial error in evidentiary rulings, Plaintiffs filed a motion for a new trial on
December 22, 2006. 	Accompanying the motion was Plaintiffs’ thirty-six page

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memorandum containing twenty-six exhibits. Plaintiffs appeal the court’s denial of
that motion.
DISCUSSION
Juror Misconduct
{10} 	Through the post-verdict investigation, Plaintiffs learned that one juror, likely
early in the trial, spoke to the owner of a Subaru-specific repair shop, Michael Griego
(the owner), where the juror’s brother worked as a mechanic. Plaintiffs then presented
to the court an affidavit of the owner dated December 12, 2006. In its entirety, the
affidavit states:
The affiant, Michael Griego[,] first being duly sworn deposes and
says as follows:
1. 	My name is Michael Griego. I am an adult and I am competent to
make this affidavit. The facts stated in this affidavit are true and
are based upon my own personal knowledge.
2. 	I read an article in the newspaper about the trial in Santa Fe in
which a woman was suing Subaru because she was paralyzed in
a rollover accident because her [seatbelt] came off. I believe the
article was in September of [2006].
3. 	I am the owner of Mike’s Garage at 1501 5[th] St. Santa Fe, New
Mexico. 	My shop only works on Subaru vehicles. 	Michael
Lucero is an employee of my business.
4. 	Marie Millie Valdivia is Michael Lucero’s sister.
5. 	Prior to my seeing the newspaper article about the Subaru trial,
Ms. Valdivia and I had a conversation. She told me that she was

6
a juror on the Subaru trial. 	I told her I had never heard of any
incident 	where 	a 	Subaru 	[seatbelt] buckle 	had 	come 	open
accidentally. I told her that I had never heard of that happening.
6. 	During the conversation, she said to me, at least twice, that she
was not supposed to be talking to me about the case.
Plaintiffs’ motion for a new trial was in part based on their view that the juror engaged
in misconduct as shown by the conversation described in the owner’s affidavit.
Standard of Review
{11} 	“The essence of cases involving juror . . . misconduct . . . is whether the
circumstance[s] unfairly affected the jury’s deliberative process and resulted in an
unfair jury.” State v. Mann, 2002-NMSC-001, ¶ 20, 131 N.M. 459, 39 P.3d 124. We
will not overturn a district court’s denial of a motion for a new trial based on juror
misconduct unless the court abused its discretion. Id. ¶ 17. An abuse of discretion in
this context occurs if the court’s ruling is arbitrary, capricious, or beyond reason. Id.
The district court is in the best position to decide whether to grant a new trial. Id.
The Affidavit’s Shortcomings
{12} 	The owner’s affidavit constitutes the sole evidence Plaintiffs presented to the
court as evidence of the juror’s conduct relating to the receipt of extraneous
information. The circumstances set out in the owner’s affidavit are not, in our view,
to be characterized as “jury tampering,” as occurs when a person purposefully initiates
contact with a juror and then says something to influence the juror. See id. ¶¶ 20-21

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(discussing cases involving jury tampering). Nor does this case involve “juror bias.”
See id. ¶¶ 20-21, 25-26. Further, the contact here was not equal to unauthorized social
visits with court personnel or lawyers involved in the case. 	Compare Gonzales v.
Surgidev Corp., 120 N.M. 133, 148, 899 P.2d 576, 591 (1995) (deciding not to reach
whether a bailiff’s lunch with the plaintiff fell within the category of extraneous
prejudicial information because it was shown that no prejudice resulted), with State
v. Pettigrew, 116 N.M. 135, 140, 860 P.2d 777, 782 (Ct. App. 1993) (determining that
the court did not commit reversible error in excusing a seated juror for the appearance
of impropriety when the juror was seen leaving in his vehicle with an intern from the
public defender’s office during a recess in the trial). The owner’s affidavit is unclear
as to whom initiated a discussion in regard to seatbelt buckles. Were it shown that the
juror asked the owner about seatbelt buckles unlatching, this case would appear to fall
more in line with what our Supreme Court in Mann characterized as misconduct,
which involved the initiation of a conversation by a juror with another person in an
attempt to obtain information relevant to the case contrary to the instructions of the
court. 	See 	2002-NMSC-001, 	¶¶ 	22, 	24 	(discussing 	juror 	misconduct 	and
distinguishing between knowledge of extraneous facts that are and that are not directly
related to the specific case).
{13} 	The affidavit shows only that a conversation occurred in which the juror told

8
the owner that she was a juror in “the Subaru trial,” that the owner said he had never
heard of an incident of a buckle opening accidentally, and that the juror indicated that
she was not supposed to be talking to the owner about the case. The affidavit does not
specifically state the sequence of the statements in the conversation and it gives no
clue as to what caused the owner to say what he did or what motivated the juror to say
what she did. 	The affidavit does not expressly state that the juror initiated the
conversation. If we assume she did, all we would know is that she said that she was
a juror in the Subaru trial. 	Without more, we will not conclude that the juror
disobeyed an instruction of the court not to discuss case-related issues or facts with
others. Nevertheless, the juror did receive extraneous information relating to an issue
in the case.
Presumption of Prejudice and Preliminary-Showing Requirement
{14} 	In determining whether a new trial is required based on the juror’s receipt of
extraneous information, we look at whether the information that was imparted to the
single juror gave rise to a presumption of prejudice requiring Defendants to rebut the
presumption or at least requiring the district court to hold an evidentiary hearing and
to question one or more jurors. 	Early in New Mexico criminal law, our Supreme
Court established a presumption of prejudicial error in relation to a court’s
communication with the jury. 	See State v. Beal, 48 N.M. 84, 89-94, 146 P.2d 175,

9
178-82 (1944) (holding that reversible error occurred upon a showing that the court
improperly communicated with the jury regarding the case after the matter had been
submitted to the jury, and the communication was not in the presence of the parties
in open court). The Court in Beal emphasized that once the improper communication
was shown, the burden was not on the appellant who was claiming prejudice to show
prejudice, but instead was on the appellee who was claiming that there was no
prejudice to overcome the presumption of prejudicial error by showing a lack of
prejudice. Id. at 91-92, 94, 146 P.2d at 180, 181-82.
{15} 	Ten years after Beal, in Remmer v. United States, the United States Supreme
Court broadly stated that “[i]n a criminal case, any private communication, contact,
or tampering directly or indirectly, with a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made
in pursuance of known rules of the court and the instructions and directions of the
court made during the trial, with full knowledge of the parties.” 347 U.S. 227, 229
(1954). 	In Remmer, the impropriety involved jury tampering, in that a person
remarked to a juror that the juror could profit by bringing in a verdict favorable to the
defendant. Id. at 228.
{16} 	In State v. Doe, 101 N.M. 363, 365, 367, 683 P.2d 45, 47, 49 (Ct. App. 1983),
this Court discussed the Beal presumption in connection with a newspaper story

10
regarding witness intimidation that came to a juror’s attention during a recess. This
Court did not determine whether the communication constituted prejudicial extraneous
information that reached the jury; rather, the matter was remanded for a hearing for
findings on “whether extraneous information reached the jury” and “whether the
extraneous information prejudiced the jury.” Doe, 101 N.M. at 366, 683 P.2d at 48.
In stating that the burden is on the movant to obtain a new trial, this Court stated:
The party seeking a new trial on the basis that extraneous evidence
reached the jury must make a preliminary showing that movant has
competent evidence that material extraneous to the trial actually reached
the jury. If the party makes such a showing, and if there is a reasonable
possibility the material prejudiced the defendant, the trial court should
grant a new trial. The trial court has a duty to inquire into the possibility
of prejudice. In an appropriate case, the trial court should conduct an
evidentiary hearing.
Id. (citations omitted). Our Supreme Court confirmed this approach in Mann. 	See
Mann, 2002-NMSC-001, ¶ 19.
{17} 	The presumption expressed in Beal and Doe has continued in New Mexico in
both criminal and civil cases in various contexts. Criminal cases: see, e.g., State v.
Sanchez, 2000-NMSC-021, ¶¶ 23-24, 129 N.M. 284, 6 P.3d 486 (involving the post-
submission substitution of a juror); State v. Sena, 105 N.M. 686, 687-88, 736 P.2d
491, 492-93 (1987) (involving a juror’s statement during deliberations about guilt of
the defendant and that this view was not based on anything the juror heard in the
courtroom); State v. McCarter, 93 N.M. 708, 711, 604 P.2d 1242, 1245 (1980)

11
(involving the court’s communication with the jury in the absence of the defendant);
State v. Melton, 102 N.M. 120, 123, 692 P.2d 45, 48 (Ct. App. 1984) (involving a
jury’s consideration of dictionary definitions); State v. Gutierrez, 78 N.M. 529, 530,
433 P.2d 508, 509 (Ct. App. 1967) (involving an unknown person who brushed
against a juror during a break and told the juror “to make a wise decision,” which was
presented to the court before jury deliberations). Civil cases: 	see, e.g., Goodloe v.
Bookout, 1999-NMCA-061, ¶ 20, 127 N.M. 327, 980 P.2d 652 (involving jurors
discussing personal knowledge of facts among themselves during deliberations);
Hurst v. Citadel, Ltd., 111 N.M. 566, 570-71, 807 P.2d 750, 754-55 (Ct. App. 1991)
(involving a bailiff’s misstatement of law to the jury); Prudencio v. Gonzales, 104
N.M. 788, 789-90, 727 P.2d 553, 554-55 (Ct. App. 1986) (involving a bailiff’s direct
and inappropriate contact with jurors); Budagher v. Amrep Corp., 100 N.M. 167, 171,
667 P.2d 972, 976 (Ct. App. 1983) (involving an improper set of instructions in the
jury room and the court noting a number of improper-communication-with-jury cases
in 	New 	Mexico 	since 	Beal, 	applying 	the 	presumption-of-prejudice 	test 	and
determining that the error in the case at hand was “serious” and that the presumption
was supported by the record).
{18} 	We note that, in Mann, our Supreme Court specifically indicated that the United
States Supreme Court has distanced itself from Remmer’s presumption of prejudice.

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Mann, 2002-NMSC-001, ¶ 36; see also Goodloe, 1999-NMCA-061, ¶ 20 (noting
United States v. Sylvester, 143 F.3d 923, 933-34 (5th Cir. 1998), as suggesting that the
Remmer presumption has been abandoned by the United States Supreme Court).
However, Mann found it “unnecessary to reconcile existing New Mexico precedent
with this more recent articulation by the Supreme Court.” 2002-NMSC-001, ¶ 36.
In the present case, Defendants claim that a majority of jurisdictions have now
rejected a presumption of prejudice in civil cases. Defendants do not, however, ask
this Court to reconcile existing New Mexico precedent with what may be a change in
the law in the federal courts and perhaps in other states. We do not attempt any such
reconciliation in this opinion.
{19} 	As New Mexico law stands, the presumption of prejudice does not arise unless
a sufficient preliminary or threshold showing is made to invoke it. 	This Court
indicated in our most recent civil case on juror misconduct that that “rather than
stating that courts always presume prejudice, it may be more accurate to state that the
threshold question for the trial court is whether the unauthorized conduct creates a
presumption of prejudice.” 	Goodloe, 1999-NMCA-061, ¶ 20 (internal quotation
marks and citation omitted). 	This includes consideration of whether “there is a
reasonable probability or a likelihood that the extrinsic communications or conduct
would have an effect upon the verdict or upon the typical juror.” 	Id. (internal

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quotation marks and citation omitted). This Court further stated that “courts apply
common 	sense 	to 	evaluate 	the 	likelihood 	of 	prejudice 	arising 	from 	the
communication.” Id. Similar to Goodloe’s “threshold question” is language in Doe,
repeated in Mann, that the new-trial movant who asserts juror misconduct “must make
a preliminary showing [with] competent evidence that . . . extraneous [information]
actually reached the jury.” Mann, 2002-NMSC-001, ¶ 19 (internal quotation marks
and citation omitted); Doe, 101 N.M. at 366, 683 P.2d at 48.
When Extraneous Information Is Brought to the District Court’s Attention
{20} 	The preliminary-showing requirement in Doe and Mann, and Goodloe’s
threshold-question requirement, indicate that upon receipt of the evidence of juror
receipt of extraneous information the district court is to make an assessment whether
evidence exists that requires invocation of the presumption-of-prejudice error. 	See
also Budagher, 100 N.M. at 172, 667 P.2d at 977 (determining as a threshold matter
that misconduct was “serious” and that the presumption was supported by the record).
As Mann indicates, we should focus on whether extraneous information “unfairly
affected the jury’s deliberative process and resulted in an unfair jury.” 2002-NMSC-
001, ¶ 20; see also Goodloe, 1999-NMCA-061, ¶ 20 (stating that the court is to
consider whether there was “a reasonable probability or a likelihood that the extrinsic
[information] would have an effect upon the verdict or upon a typical juror” (internal

14
quotation marks and citation omitted)); Doe, 101 N.M. at 366, 683 P.2d at 48 (stating
that if a party makes the required preliminary showing and “if there is a reasonable
possibility the material prejudiced the defendant, the trial court should grant a new
trial”). We make no distinction between “preliminary” and “threshold,” and from here
on we use “preliminary.” 	Defendants contend that Plaintiffs failed to make the
requisite preliminary showing and, therefore, the evidence did not give rise to a
presumption of prejudice or require the district court to conduct any inquiry or have
an evidentiary hearing. We address this point.
{21} 	A juror’s testimony or affidavit in regard to the juror’s or the jury’s
deliberations are forbidden under Rule 11-606(B) NMRA. Thus, while under Rule
11-606(B), evidence of “extraneous prejudicial information . . . brought to the jury’s
attention” can be shown by a juror’s testimony or affidavit, courts must make
decisions in regard to a mistrial or a new trial without the benefit of knowing the
jury’s deliberations. 	The court must instead base its ruling on the likelihood that
potentially prejudicial, extraneous information “actually reached the jury.” See Mann,
2002-NMSC-001, ¶ 19. The difficulty of making that ruling, however, does not end
the inquiry.
{22} 	New Mexico cases have not specifically analyzed whether one juror’s receipt
of extraneous information is sufficient to invoke the presumption of prejudice where

15
there is no evidence that the extraneous information actually reached other members
of the jury. 	Mann states that the district court is to assess whether the evidence
indicates “that material extraneous to the trial actually reached the jury.” 	2002-
NMSC-001, ¶ 19; see also Rule 11-606(B) (stating that a juror may testify as to
“whether extraneous prejudicial information was improperly brought to the jury’s
attention”); Doe, 101 N.M. at 366, 683 P.2d at 48 (“The party seeking a new trial on
the basis that extraneous evidence reached the jury must make a preliminary showing
that movant has competent evidence that material extraneous to the trial actually
reached the jury.”).
{23} 	A bit differently, this Court in Goodloe and Prudencio stated that courts are to
determine “whether there is a reasonable probability or a likelihood that the extrinsic
communications or conduct would have an effect upon the verdict or upon a typical
juror.” 	Goodloe, 1999-NMCA-061, ¶ 20 (internal quotation marks and citation
omitted); Prudencio, 104 N.M. at 790, 727 P.2d at 555. Furthermore, Remmer states
that “any private communication . . . with a juror during a trial about the matter
pending before the jury is, for obvious reasons, deemed presumptively prejudicial.”
347 U.S. at 229. 	In addition, one decision of this Court might be construed as
supporting a holding that extraneous information obtained or received by one juror
can be presumptively prejudicial although there is no evidence that other jurors were

16
affected. See Pettigrew, 116 N.M. at 140, 860 P.2d at 782 (determining that a juror’s
unauthorized contact with an intern from the public defender’s office that created an
appearance of impropriety was presumptively prejudicial).
Lack of Sufficient Preliminary Showing
{24} 	We need not try to resolve the foregoing issue because we think the evidence
in the present case falls short of the required preliminary showing. To begin with, a
reasonable inference can be drawn from the affidavit that the juror was conscious of
her duty not to investigate on her own or to seek information outside of the evidence.
The owner’s affidavit does not say or contain facts that directly show that the juror
sought from the owner specific facts about the type of seatbelt buckle in question.
Also, at the start of trial, the court instructed the jury as to “a number of important
rules governing your conduct during the trial.” The jury was told that during recesses
and adjournments, while the case was in progress, “do not discuss the case with
anyone other than yourselves.” Jurors were informed that in order to “minimize the
risk of accidentally overhearing something that is not in evidence in this case,” jurors
were to wear their jury badges around the courthouse. Jurors were admonished that
“[t]hough it is natural to visit with people you meet, please do not talk with any of the
attorneys, parties, witnesses or spectators either in or out of the courtroom.” 	Of
particular importance, the court instructed the jurors to “not consider anything you

17
may have read or heard about this case outside the courtroom.” The jurors were told
not to “attempt to research, test, experiment, visit[] . . . any location involving this
case or any other investigation” and that “[s]uch conduct also runs contrary to the rule
that your verdict must be based solely upon the evidence presented to you.” The court
impressed upon jurors not to attempt to decide the outcome of the case before final
deliberations. 	Further, the jurors were told that the rules the court was giving the
jurors “apply at all times during the trial.”
{25} 	During and after trial the court gave further instructions to the jury. At certain
breaks during trial, the district court instructed the jurors not to discuss the case with
anyone, to report any discussions of the case in the presence of a juror, and to avoid
forming a fixed opinion about the case before deliberations. At the close of the trial,
the court instructed the jury that it was their “duty to determine the true facts from the
evidence produced here in open court” and that their “verdict should not be based on
speculation, guess or conjecture.”
{26} 	We presume that the jurors followed the instructions given by the court. See
State v. Benally, 2001-NMSC-033, ¶ 21, 131 N.M. 258, 34 P.3d 1134 (“We presume
that the jury followed the instructions given by the trial court, not the arguments
presented by counsel.”); State v. Smith, 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19
P.3d 254 (observing that the jury was instructed not to draw any inference of guilt

18
from the fact that the defendant did not testify and that such fact should not be
discussed by the jurors or enter into their deliberations in any way, and stating that
“[j]uries are presumed to have followed the written instructions”); State v. Case, 100
N.M. 714, 719, 676 P.2d 241, 246 (1984) (stating that there is a presumption that the
jury will adhere to the court’s admonition that they will not discuss the case or the
evidence with anyone, and they will keep an open mind until the case is completed
and submitted); State v. Sellers, 117 N.M. 644, 650, 875 P.2d 400, 406 (Ct. App.
1994) (stating that “[t]here is a presumption that the jury follows the instructions they
are given”).
{27} 	The owner’s affidavit states that the juror in question indicated to the owner “at
least twice, that she was not supposed to be talking to me about the case.” 	This
indicates that the juror was aware of the court’s instructions. The affidavit does not
present facts that show that the juror actually violated any instruction. And there is
nothing in evidence showing that she actually breached any duty or engaged in
misconduct in relation to the statements between herself and the owner.
{28} 	Further, the owner’s affidavit does not state that he knew or was informed about
the facts in the present case other than, it would appear, that a seatbelt buckle in a
Subaru vehicle was involved. There exists only the owner’s bare statement that he
had not heard of an accidental unbuckling. This was not a definitive statement, nor

19
was it an opinion, as to whether the buckle could or could not accidentally or
inadvertently open or had never opened under circumstances analogous to those in the
present case or, for that matter, under any circumstance. Plaintiffs did not present to
the court any foundational statements from the owner in regard to his knowledge and
experience relating to defective AB buckles in Subarus. 	Moreover, the owner’s
statement seems almost inconsequential in comparison to the substantial testimony at
trial, including expert testimony, relating to whether the buckle was negligently
designed or was defective and how the buckle may have opened. 	In addition,
Plaintiffs were unable in this case to present evidence of an accidental unbuckling
from any particular object, such as a hand, elbow, or other object loose in the vehicle.
As we indicated earlier in this opinion, the juror heard the owner’s statement fairly
early in the trial, before or during the extensive testimony about seatbelts, and well
before the jury’s deliberations.
{29} 	Plaintiffs mention the juror’s failure to report to the court what the owner said.
In their memorandum in support of their motion for a new trial, Plaintiffs stated that
this failure to report compounded “the problem” because, had the court known what
the owner stated, it could have addressed the issue during trial. 	In oral argument
before this Court, Plaintiffs’ counsel appeared to indicate that the failure to report was
misconduct that would require a new trial. We reject these notions insofar as they are

20
intended to constitute rationales for a new trial. 	We are supplied no argument or
authority to support them. As well, even were the failure to report relevant to some
issue in this case, one can only speculate as to what the juror might have reported and
how the court would have handled the report.
{30} 	Based on the foregoing discussion, we doubt that there was a reasonable
likelihood that the owner’s statement had a significant effect on the juror’s vote in the
present case. Nor is there any reason to believe that the owner’s statement reached
another member of the jury. There exists no evidence from which such an inference
can be reasonably drawn. 	Cf. Saucedo v. Winger, 850 P.2d 908, 914 (Kan. 1993)
(stating that if a juror’s misconduct is “not such as to influence the jury, the
misconduct will not vitiate a verdict[,] [b]ut if facts outside of the evidence are
brought before the jury based on the personal knowledge of a juror and those facts are
likely to have influenced the minds of other jurors, the verdict should be set aside”).
We are aware that a rational counter-argument is that there is no evidence to the
contrary, that is, no evidence that the juror did not discuss the information with one
or more other jurors. 	Nevertheless, we see nothing in the owner’s statement that
requires us to conclude that the juror would have thought so strongly about the matter
or have thought the information sufficiently significant that she likely would have
conveyed the information to other jurors.

21
{31} 	With nothing before us beyond what is in the owner’s affidavit, we hold that
Plaintiffs did not sustain their burden to preliminarily show there was a reasonable
likelihood that the information would have an effect on the verdict or even on a typical
juror. We cannot conclude that there was a reasonable possibility that the information
prejudiced Plaintiffs. Thus, a presumption of prejudice did not arise in this case.
Question of Evidentiary Hearing or District Court Investigation
{32} 	Plaintiffs nevertheless contend that they are entitled to a new trial because the
district court failed to hold an evidentiary hearing or otherwise investigate once
presented with the owner’s affidavit. We disagree and hold that the court was not
required to conduct an evidentiary hearing or to otherwise investigate further when
Plaintiffs failed to make the required preliminary showing. Mann, 2002-NMSC-001,
¶ 19; State v. Chamberlain, 112 N.M. 723, 733, 819 P.2d 673, 683 (1991) (holding
that the district court did not abuse its discretion by denying a motion for further
inquiry because there was no evidence that new evidentiary facts reached the jury
during deliberations); Sena, 105 N.M. at 688, 736 P.2d at 493 (holding that the district
court did not abuse its discretion by denying a motion for an evidentiary hearing
because the affidavit alleging misconduct “does not indicate that extraneous material
reached the jury”).
{33} 	Furthermore, in the face of Defendants’ argument that Plaintiffs failed to

22
request an evidentiary hearing, Plaintiffs have not shown that they requested the court
with any degree of specificity to investigate, to call jurors in for questioning, or to
schedule an evidentiary hearing because Plaintiffs intended to present testimony in
support of their claim of misconduct. 	In support of their contention that they did
request an evidentiary hearing, Plaintiffs assert that when they submitted a December
22, 2006, hearing package to the district court relating to their motion for a new trial,
they stated in a cover letter the “possible need for an evidentiary hearing on the juror
misconduct issue.”
{34} 	Nothing in Plaintiffs’ hearing package or in their motion for a new trial and
supporting memorandum discusses the need for or specifically asks the court to hold
an evidentiary hearing on the juror-misconduct issue. Nor is there any request in these
documents that the court investigate or call jurors in, and there is no discussion about
or authority showing a duty on the part of the court to do so. A party serious about
an evidentiary hearing on a juror-misconduct issue surely would proceed more
forcefully than to merely indicate a “possible need for an evidentiary hearing.”
Further, in a separate request for hearing, Plaintiffs requested only one and one-half
hour for a hearing on the entirety of their motion for a new trial and said nothing about
the need for an evidentiary hearing on the juror-misconduct issue. We see nothing in
the record or briefs indicating that Plaintiffs alerted the district court or Defendants

23
that Plaintiffs intended to subpoena jurors or others or to ask the court to do so.
{35} 	At no time after December 22, 2006, did Plaintiffs request an evidentiary
hearing or request the court to conduct any sort of investigation. On January 17, 2007,
one day after Defendants’ responses to Plaintiffs’ motion for a new trial were filed,
Plaintiffs submitted a request for an expedited hearing on their motion for a new trial.
This request, which reduced the estimated hearing time to only one hour, did not
mention or in any way alert the district court that Plaintiffs wanted an evidentiary
hearing specifically on the juror-misconduct issue. On the same date, the court denied
Plaintiffs’ motion for a new trial without granting the hearing Plaintiffs had requested.
{36} 	Plaintiffs nonetheless assert that “[t]he trial court has a duty to inquire into the
possibility of prejudice” and that “[i]n an appropriate case, the trial court should
conduct an evidentiary hearing.” Doe, 101 N.M. at 366, 683 P.2d at 48. We agree
that a district court has a duty in the appropriate case to conduct such an evidentiary
hearing. See id. However, we are not persuaded that this is the appropriate case or
that the court abused its discretion when it did not schedule an evidentiary hearing or
otherwise investigate further on the juror-misconduct issue.
{37} 	Given the thinness of the affidavit evidence presented to the district court, we
think it was incumbent on Plaintiffs to at the very least have provided foundational
evidentiary support beyond what was in the owner’s affidavit. 	In fact, Plaintiffs’

24
counsel’s law firm had a legal assistant who had sat through the entire trial make
“numerous attempts to contact jurors” after the trial. 	The legal assistant stayed in
Santa Fe for several days following trial for this purpose. He traveled several times
from Detroit, Michigan, the law firm’s place of business, to Santa Fe to explore
information regarding the juror who spoke to the owner of the Subaru repair shop, and
ultimately obtained the owner’s signature on the affidavit. As far as we can discern
from the record, Plaintiffs failed to provide any explanation to the district court
regarding the legal assistant’s or anyone else’s attempts to contact any jurors other
than the juror in question. Without more for the court to go on, and without Plaintiffs
having specifically requested the court to call jurors in, to otherwise explore the matter
further, or to hold an evidentiary hearing, we cannot say that the court abused its
discretion in not proceeding on its own to obtain the presence of jurors to testify or to
otherwise investigate or hold an evidentiary hearing, or in denying the motion for a
new trial on the extraneous information.
Exclusion of Evidence of Other Incidents and Complaints
{38} 	In their case in chief, in anticipation of defense witness testimony, Plaintiffs
sought to show, through an expert witness, four incidents or occurrences in the form
of lawsuit claims involving “real world accidents and claims of AB buckles opening.”
The court did not allow the evidence. Plaintiffs appeal the court’s exclusion of the

25
evidence.
{39} 	“Admission or exclusion of evidence is a matter within the discretion of the trial
court and the court’s determination will not be disturbed on appeal in the absence of
a clear abuse of that discretion.” Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013,
¶ 36, 127 N.M. 47, 976 P.2d 999 (internal quotation marks and citation omitted). We
review the admission or exclusion of evidence for abuse of discretion. Hourigan v.
Cassidy, 2001-NMCA-085, ¶ 21, 131 N.M. 141, 33 P.3d 891. “An abuse of discretion
occurs when the ruling is clearly against the logic and effect of the facts and
circumstances of the case.” Coates, 1999-NMSC-013, ¶ 36 (internal quotation marks
and citation omitted). Furthermore, an abuse of discretion will be found only if we
can characterize the district court’s ruling “as clearly untenable or not justified by
reason.” 	Id. (internal quotation marks and citation omitted). 	“When there exist
reasons both supporting and detracting from a trial court decision, there is no abuse
of discretion.” State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P.3d 363
(internal quotation marks and citation omitted). 	“We do not find an abuse of
discretion unless the court’s ruling exceeds the bounds of all reason or is arbitrary,
fanciful or unreasonable.” Mayeux v. Winder, 2006-NMCA-028, ¶ 34, 139 N.M. 235,
131 P.3d 85 (filed 2005) (internal quotation marks and citation omitted). If evidence
is erroneously admitted or excluded, the complaining party must show prejudice to

26
obtain a reversal. See id. ¶ 37. “[W]e will reverse the trial court only when it is clear
that the court has abused its discretion.” 	Behrmann v. Phototron Corp., 110 N.M.
323, 327, 795 P.2d 1015, 1019 (1990).
{40} 	Plaintiffs claim that without the evidence of what they contend are similar real-
world accidents in which AB buckles opened, they were unable to defend against the
anticipated defense witness testimony “that 169 million AB buckles had been
manufactured representing ‘tens of millions of . . . cars years of exposure or
experience’”; “that AB buckles do not release . . . in real[-]world accidents”; “that the
vehicle and buckle manufacturers had procedures by which they would learn about
any problems with their vehicles or [seatbelts] and that there was not a single report
of an AB [seatbelt] buckle ever releasing in any accident and that it could never
happen in the ‘real world’”; and “that ‘Takata has manufactured many buckles . . . and
we have never heard [of] a buckle opening in the marketplace.’” Plaintiffs’ purpose
was to show that Defendants did have notice of AB buckles opening and to thereby
rebut the aforementioned anticipated defense testimony. Plaintiffs go a bit too far in
their brief in chief claiming they could not give the jury important evidence on the
likelihood of injury or the risk of injury resulting from the condition of the buckle as
they are entitled to do pursuant to UJI 13-1406 NMRA. This is not the evidence they
sought to present. Our review of the transcript of the hearing on this issue indicates

27
that Plaintiffs’ stated purpose of offering the evidence was solely “to show that indeed
there are claims out in the world, there are allegations of buckle openings against
Takata customers involving this buckle” and was intended to rebut Defendants’
evidence as to not having received notice of such claims from customers.
{41} 	According to Plaintiffs, one of their expert witnesses was prepared to testify
that he conducted investigations in respect to the four cases and concluded that Takata
AB buckles had released during the crash. 	In their briefs on appeal, Plaintiffs
nowhere specifically describe any details, variables, or other aspects relating to these
claimed similar incidents or to their expert’s anticipated testimony. Plaintiffs appear
to leave it to this Court to search the record and to analyze and set out details as to the
incidents and Plaintiffs’ positions and arguments. We choose not to do so. “We are
not obligated to search the record on a party’s behalf to locate support for propositions
a 	party 	advances 	or 	representations 	of 	counsel 	as 	to 	what 	occurred 	in 	the
proceedings.” Muse v. Muse, 2009-NMCA-003, ¶ 42, 145 N.M. 451, 200 P.3d 104
(filed 2008); see Bintliff v. Setliff, 75 N.M. 448, 450, 405 P.2d 931, 932 (1965)
(determining that our Supreme Court would not consider the argument of the
appellant’s counsel due to the failure to provide specific references to the record in
violation of a Supreme Court rule); Murken v. Solv-Ex Corp., 2005-NMCA-137, ¶ 14,
138 N.M. 653, 124 P.3d 1192 (“[W]e decline to review . . . arguments to the extent

28
that we would have to comb the record to do so.”); In re Estate of Heeter, 113 N.M.
691, 694, 831 P.2d 990, 993 (Ct. App. 1992) (“This [C]ourt will not search the record
to find evidence to support an appellant’s claims.”).
{42} 	All Plaintiffs offered were four occurrences that were the subjects of four
lawsuits that never went to trial and that consisted of claims that were never proved.
Defendants show that the claimed occurrences involved different vehicles and other
crash-related variables and that there were no conclusions as to any one cause of a
buckle opening. 	The district court determined that the proposed evidence had
“tenuous relevance to the purpose for which it would be offered as well as the
prejudice would outweigh the probative value and could become an inefficient
presentation of evidence.”
{43} 	Plaintiffs’ briefing is insufficient to persuade us that the circumstances of the
four cases are sufficiently probative to hold that the district court abused its discretion
in excluding the cases from consideration. 	The appellate courts afford the district
courts wide latitude and discretion in deciding whether the prejudicial impact of
tendered evidence outweighs its probative value. See State v. Coffin, 1999-NMSC-
038, ¶ 35, 128 N.M. 192, 991 P.2d 477; Norwest Bank N.M., N.A. v. Chrysler Corp.,
1999-NMCA-070, ¶ 39, 127 N.M. 397, 981 P.2d 1215. Furthermore, the district court
has discretion to reject evidence with tenuous relevance because of the inordinate time

29
and efficiency that could be lost in conducting what might essentially be separate trials
on the other occurrences. See Moe v. Avions Marcel Dassault-Breguet Aviation, 727
F.2d 917, 935 (10th Cir. 1984) (affirming a district court’s conclusion that “certain
tenders of evidence of other flight incidents, after the crash [in question], would
constitute a mini-trial within a trial, resulting in undue delay, waste of time, and
needless presentation of cumulative evidence” contrary to Federal Rule of Evidence
403). 	We reject what appears to be Plaintiffs’ argument that they were entitled to
show little more than AB buckles allegedly opening in four other lawsuits.
{44} 	In addition to attempting to present the foregoing evidence of other incidents,
in cross-examining a defense expert, Plaintiffs also sought to use complaints which
consisted of verbal claims made by consumer call-in to a National Highway
Transportation Safety Administration “hotline” about buckle release in vehicles with
Takata AB seatbelts. Plaintiffs state that a defense expert testified “about the process
by 	which 	consumer 	complaints 	about 	[seatbelts] 	are 	passed 	on 	to 	vehicle
manufacturers through a [nationwide] ‘Hot Line’” and that a Subaru engineer
“testified that he had ‘never heard of any instance or incident where the [seatbelt] in
our vehicle released an occupant.’” According to Defendants, Plaintiffs sought to use
three complaints to counter that testimony. The court determined that this evidence
was of limited, if any, relevance and that its probative value was outweighed by

30
prejudice and confusion.
{45} 	Again, Plaintiffs nowhere detail in their briefs of what the complaints
specifically consisted or how the claims and circumstances were substantially similar
to Plaintiffs’ claims and the circumstances in the present case. Also problematic is
that it appears that no evidence indicated that any complaint was confirmed or
investigated. 	It is unclear whether the circumstances and seatbelts involved were
shown to be similar to those in the present case. Again, we will not comb the record
to find evidence to support a party’s position on appeal. 	Muse, 2009-NMCA-003,
¶ 42; see Bintliff, 75 N.M. at 450, 405 P.2d at 932; Murken, 2005-NMCA-137, ¶ 14;
In re Estate of Heeter, 113 N.M. at 694, 831 P.2d at 993. And again, based on what
Plaintiffs have set out in their briefs, the district court did not abuse its discretion in
precluding use of the hotline complaints.
{46} 	In sum, Plaintiffs’ general, broad-swathe assertions of exclusion of evidence of
allegedly similar incidents and hotline complaints are insufficient to sustain Plaintiffs’
contention that the district court abused its discretion, and do not pass muster under
our briefing rules. From what Plaintiffs have presented in their briefs, we hold that
the court could rationally and reasonably have found, as it did, that the evidence had
only tenuous or limited relevance, if any, that prejudice outweighed probative value,
and that admission of the evidence would cause inefficiency, if not also confusion, in

31
the trial. See Rule 11-403 NMRA; Olson v. Ford Motor Co., 481 F.3d 619, 623 (8th
Cir. 2007) (stating, in a product-liability case involving a vehicle’s unexpected
acceleration and power-brake system, that the reason for the “extremely deferential
standard of review” under federal Rule 403 is that the ruling “depends on factors that
are uniquely accessible to the trial judge who is present in the courtroom and uniquely
inaccessible to an appellate judge who must take the case on a cold record”); C.A.
Assoc. v. Dow Chem. Co., 918 F.2d 1485, 1489 (10th Cir. 1990) (stating, in a product-
liability case involving a masonry mortar additive, that in federal Rule 403 rulings, the
deference accorded “to the trial judge who is most familiar with the circumstances .
. . is particularly fitting in lengthy trials involving [a] magnitude of highly technical
expert testimony” (citation omitted)).
Surprise Theory in Opening Statement
{47} 	During trial, Plaintiffs filed an expedited motion in limine to exclude any
evidence, whether from a defense expert or otherwise, on what Plaintiffs considered
to be a “surprise theory” of the defense, which they asserted was first asserted in
Defendants’ counsel’s opening statement to the jury. The surprise theory about which
Plaintiffs complained below and now complain on appeal is embodied in the
following statements of defense counsel relating to Mrs. Kilgore: After saying that
somebody unbuckled Mrs. Kilgore’s seatbelt after the car stopped, then asking the

32
question, “Who?,” and finally suggesting it could have been one among “a lot of
people at the scene who left,” defense counsel said, “And there’s another person who
was at the scene who doesn’t remember anything, [Mrs.] Kilgore.” Following this,
defense counsel asked whether Mrs. Kilgore, like Mr. Kilgore and the granddaughter,
could have unbuckled her own seatbelt. Defense counsel then explained that an expert
witness, Dr. Whitman McConnell, would explain that the soft tissue around Mrs.
Kilgore’s “hairline [neck bone] fracture” began to swell to the point where it impinged
on her spinal cord and that up to the point at which that impingement caused paralysis,
Mrs. Kilgore was not paralyzed and could use her right arm to unbuckle the belt.
{48} 	In their motion in limine, Plaintiffs stated that Dr. McConnell, a medical doctor,
was the only defense expert designated by Defendants who was possibly qualified to
testify on the sufficiency of Mrs. Kilgore’s functioning motor skills to unbuckle her
seatbelt. 	Plaintiffs complained that Defendants had never “disclosed that [Dr.]
McConnell [would] opine regarding [Mrs.] Kilgore’s remaining motor skills.”
Plaintiffs also complained that Dr. McConnell’s pretrial depositions were “silent on
this subject.” Plaintiffs therefore asked the district court to “preclude the defense from
introducing any evidence that [Mrs.] Kilgore was capable of, or did unlatch her
[seatbelt] at the conclusion of the rollover” and from making this argument to the jury.
The district court denied Plaintiffs’ motion in limine.

33
{49} 	Plaintiffs do not assert on appeal that the court erred in denying this motion in
limine. 	Plaintiffs’ point on appeal is that “[t]here was no competent evidence to
support the surprise defense theory that [Mrs.] Kilgore unbuckled her own [seatbelt],”
and they seek a new trial because of defense counsel’s opening statement comments.
They base this assertion on the alleged prejudicial effect of the statements. Plaintiffs
complain that the facts defense counsel referred to in the opening statement could not
be proved by Dr. McConnell or otherwise, and Plaintiffs assert that, because of the
non-disclosure of Defendants’ theory until opening statement, their ability to cure the
prejudicial comments was significantly impaired. 	Citing to only a portion of two
pages of a two-hour closing argument, Plaintiffs complain that this new theory became
the centerpiece of Defendants’ arguments to the jury.
{50} 	For the several reasons that follow, we do not see how Plaintiffs can complain.
First and foremost, Dr. McConnell had testified, and his theory was neither new nor
surprising. Second, Plaintiffs failed to object to defense counsel’s opening statement
comments. See Rule 12-216(A) NMRA. “To preserve an issue for review on appeal,
it must appear that [the] appellant fairly invoked a ruling of the trial court on the same
grounds argued in the appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496,
745 P.2d 717, 721 (Ct. App. 1987); see also State v. Varela, 1999-NMSC-045, ¶ 25,
128 N.M. 454, 993 P.2d 1280 (stating that in order to preserve an issue for appeal, the

34
defendant must make a timely objection that specifically apprises the district court of
the nature of the claimed error and invokes an intelligent ruling thereon). The primary
purposes for the preservation rule are: (1) to specifically alert the district court to a
claim of error so that any mistake can be corrected at that time, (2) to allow the
opposing party a fair opportunity to respond to the claim of error and to show why the
district court should rule against that claim, and (3) to create a record sufficient to
allow this Court to make an informed decision regarding the contested issue. State v.
Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175 P.3d 942 (filed 2007); Diversey
Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 38, 125 N.M. 748, 965 P.2d 332;
cf. State v. Boergadine, 2005-NMCA-028, ¶ 31, 137 N.M. 92, 107 P.3d 532
(considering a prosecutor’s opening statement comments for fundamental error
because, due to lack of objection, the issue of prosecutorial misconduct was not
preserved, and holding that even though the comments were “intentional and
inappropriate, the statements are not sufficiently ‘egregious’ to constitute fundamental
error”); State v. Neswood, 2002-NMCA-081, ¶ 18, 132 N.M. 505, 51 P.3d 1159
(stating that, generally, the objection must be made at the time the evidence is
offered). Generally, a motion for a new trial cannot be used to preserve issues not
otherwise raised during the proceedings. Goodloe, 1999-NMCA-061, ¶ 13. Lastly,
evidence given by Dr. McConnell was not fact, but opinion evidence, as Plaintiffs

35
properly stated in their motion in limine.
{51} 	Also significant, Plaintiffs took the opportunity to address the issue two days
after opening statements with an expert of their own. Dr. Martha Bidez, an expert in
biochemical engineering and injury causation, testified at some length about the
manner in which Mrs. Kilgore was injured. Dr. Bidez testified that Mrs. Kilgore’s
neck fracture and paralysis could only have occurred after the seatbelt buckle released;
that is, at the point of the neck fracture, Mrs. Kilgore was instantly paralyzed and
could not have unbuckled her own seatbelt. Since Plaintiffs’ counsel were aware of
opposing counsel’s opening statement theories and expectations of evidence to be
presented to the jury, they were able to so inform their expert. As well, Dr. Bidez had
read Dr. McConnell’s pretrial depositions. She was therefore able to read his first
deposition testimony that Mrs. Kilgore’s “fracture occurred as a result of her head
impacting the roof as the roof impacted the ground as she was restrained in the
vehicle.” Dr. McConnell also testified at deposition, based on witness Joe Russom’s
statements that Mrs. Kilgore “ha[d] some hand movement” and appeared to be
suspended above the roof, and that “[a]t that point, an individual certainly could push
the button to the restraint system and release it.” Dr. Bidez nevertheless believed that
Mr. Russom lacked credibility. 	Her opinion does not negate Dr. McConnell’s
testimony, it only disputes it, leaving the fact for the jury to decide.

36
{52} 	While Plaintiffs complain that Dr. Bidez’s testimony was not all they would
have wanted to present to counter Defendants’ surprise theory, Plaintiffs do not
explain why, with Dr. McConnell’s deposition testimony in hand, they did not have
any other or additional expert available to testify in a manner similar to that of Dr.
Bidez and in anticipation of the testimony of Mr. Russom. Cf. Mayeux, 2006-NMCA-
028, ¶ 39 (“Here, [the p]laintiffs have alleged no prejudice besides their lack of
preparation and ability to counter . . . [the expert’s] testimony with that of another
witness so late in the trial. . . . Nor have [the p]laintiffs shown us that they asked for
more time to conduct another deposition or interview of [the expert].” (internal
quotation marks omitted)).
{53} 	Plaintiffs might reasonably have anticipated the theory suggested in opening
statement, on the horizon. The joint pretrial order in this case listed as a contested
issue of fact “[w]hether someone unbuckled [Mrs.] Kilgore’s [seatbelt] after the car
stopped[.]” Dr. McConnell’s pertinent pretrial deposition testimony was as follows:
Q. 	All right. What I’d like you to do for me, Dr. McConnell,
if you would, please, is tell me the opinions and conclusions that you’ve
reached in connection with this case.
A. 	This is a rollover in which [Mrs.] Kilgore . . . was seated in
the left rear seat of a ‘98 Subaru Outback SUV-type vehicle. And at the
end of the roll, she was found to have a fractured second cervical
vertebra. My first opinion is that the fracture occurred as a result of her
head impacting the roof as the roof impacted the ground as she was
restrained in the vehicle.

37
She sustained a left parietal hematoma or bruise resulting in a
compressive lateral bend to the right that compressed the right side of the
C-2 vertebra, producing a crack from the base of the odontoid rightward
into the right mass of the second vetebra. In other words, this was a right
lateralized 	fracture. 	The 	end 	result 	of 	that 	was 	a 	neurological
compromise that resulted in [Mrs.] Kilgore becoming a quadriplegic.
That is pretty much the sum total of my opinions. There are [sic]
some supporting information that obviously supports that.
. . . .
Q. 	Okay. Is it your opinion or have you reached any opinion
about whether Mrs. Kilgore was still belted after the accident?
A. 	I don’t have a scientifically based opinion. 	I have a
speculation, but it’s dependent upon the—upon the testimony of the
witnesses, of which you’re well aware, the differences between those
witnesses, and supposition about what happened.
Q. 	Okay. Well, what you’re going to give me, then, isn’t an
opinion that you hold with some reasonable degree of medical certainty
or scientific certainty. Correct?
A. 	That’s correct.
Q. 	It’s just a supposition based on what you’ve read and what
you kind of think might be the case. Right?
A. 	That’s correct.
Q. 	All right. Well, with that proviso, why don’t you go ahead
and tell me what our speculation is.
A. 	I think that she was probably hanging upside down in the
restraint system as the vehicle came to rest and as the witnesses came on
scene. Joe Russom and his testimony that says that she has some hand

38
movement and she appears to be suspended above the roof. Her head
seems to be suspended above the roof. As Dr. Mettler comes on scene
and he sees Mrs. Kilgore, his impression is that she’s on the roof, and
this is sometime in the same time frame that the apparently undiscovered
individual approaches from the other side of the vehicle and goes in to
help extricate her from inside the vehicle. At that point, an individual
certainly could push the button to the restraint system and release it.
And the rest of the findings would be consistent with the exception of
[the granddaughter’s] testimony, such as it is.
{54} 	Further testimony of Dr. McConnell related to swelling. Defendants suggest
that this testimony indicated that swelling, and its pressure on the spinal cord caused
Mrs. Kilgore’s spinal cord injury. The testimony was as follows.
Q. 	Did you see evidence in your review of the films of the
epidural hematoma between the skull base and C-2?
A. 	There was, but it’s really not very dramatic.
Q. 	What caused that, in your opinion?
A. 	Very likely that is an acute injury—acute injury-related
finding, and that’s the swelling that you get when you’ve got injured
tissue. It’s the body’s response to an injury.
Q. 	Where was the injury that it was responding to?
A. 	The fracture at C-2. 	Possibly a ligamentous injury is in
relationship to that.
Q. 	. . . The diffusely narrowed spinal canal in the area of C-2,
was that, in your opinion, caused by the accident, or is that simply a
preexisting condition?
A. 	I think there was more that went along with that, that they
were talking about edema [swelling] with diffuse narrowing. 	And if

39
indeed that was the case, the edema was most likely associated with the
injury.
Q. 	When they talk about narrowing of the canal, I mean, the
canal is formed by the hole in the vertebral body. Correct?
A. 	But it’s lined with the dural lining and the lining of the cord,
and both of those can swell when they’re injured.
Q. 	All right. So the narrowing in the canal in the area of C-2
is most likely associated with her acute injury?
A. 	I think so.
Defendants suggest that Plaintiffs should have asked follow-up questions relating to
the timing of the swelling—questions, for example, such as “How soon after the crash
did the swelling start?” or “How long after the swelling started did [Mrs.] Kilgore
become paralyzed?” 	Both parties argue what Plaintiffs might have done with Dr.
McConnell’s opinion. The fact is simply that Plaintiffs did not pursue evidence of
which they were aware and which they seem to regret now not pursuing. We are not
called upon to substitute hindsight regarding trial tactics.
{55} 	We acknowledge, as Plaintiffs assert, that in Chavez v. Chenoweth, 89 N.M.
423, 427, 553 P.2d 703, 707 (Ct. App. 1976), this Court stated that it is improper for
counsel to refer to facts in an opening statement which cannot be proved. 	This
statement in 	Chavez 	does not require a new trial in the present case. 	The
circumstances in Chavez were considerably different. Furthermore, testimony about

40
Mrs. Kilgore possibly releasing her own belt is not a fact. It is an opinion. Counsel
stated that Dr. McConnell would explain that the soft tissue around Mrs. Kilgore’s
fracture began to swell to a point it impinged on her spinal cord and caused paralysis,
leaving open, based on Mr. Russom’s testimony and other evidence, the possibility
that Mrs. Kilgore was not paralyzed and could use her right arm to unbuckle the
seatbelt. 	Dr. McConnell testified in that manner not only in his deposition taken
during trial, but also during his trial testimony when he testified that he could not rule
out that Mrs. Kilgore might have had motor function and might have unbuckled her
seatbelt. We cannot categorically say that counsel in his opening statement stated a
fact that could not be proved in this case. Dr. McConnell’s opinion as to the injuries
and their effect, or lack thereof, were a matter only of the weight the jury placed on
them.
{56} 	Taking 	another 	approach, 	Plaintiffs 	also 	contend 	on 	appeal 	that 	Dr.
McConnell’s “self-unbuckling” testimony was speculative and did not satisfy the
reliability requirement under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), as adopted in State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). In
the district court, Plaintiffs objected to Dr. McConnell’s anticipated testimony only
on the ground of non-disclosure, not on Daubert grounds. Plaintiffs do not in their
briefs otherwise indicate where they preserved this issue. Plaintiffs’ attempt in their

41
reply brief to show preservation by citing to the fact that it was raised in post-verdict
proceedings on their motion for a new trial is unavailing. As we indicated earlier in
this opinion, generally, the objection must be made at the time the evidence is offered,
Neswood, 2002-NMCA-081, ¶ 18, and a motion for a new trial cannot be used to
preserve issues not otherwise raised during the proceedings, Goodloe, 1999-NMCA-
061, ¶ 13, more so when not raised in the brief in chief. 	We decline to review
Plaintiffs’ Daubert argument.
Admission of Testimony Relating to a Press-Ball Test
{57} 	We review the admission of evidence for abuse of discretion pursuant to the
cases and rules discussed earlier in this opinion. See Moreland, 2008-NMSC-031, ¶ 9;
Coates, 1999-NMSC-013, ¶ 36; Behrmann, 110 N.M. at 327, 795 P.2d at 1019;
Hourigan, 2001-NMCA-085, ¶ 21.
{58} 	Plaintiffs assert error in the district court’s having permitted certain defense
witness deposition testimony in regard to “press-ball test 33” to be read to the jury,
along with the other deposition testimony of the expert that was being introduced in
regard to Takata’s buckle-test protocol. 	The offensive deposition testimony, as
characterized by Plaintiffs, involved a “speculative two-kilogram force limitation” that
was not in any written test protocol. Plaintiffs assert that the written test protocol did
not specify how much force on the buckle button was required in order to release it

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and that adding the objectionable testimony to the written test protocol had the
prejudicial effect of changing the testing result in which the buckle “demonstrably
failed” into one in which the buckle passed the test.
{59} 	The deposition testimony at issue was elicited during Plaintiffs’ examination
of the witness. When the deposition testimony was presented to the jury, Plaintiffs
sought to edit out the testimony of the two kilogram force, primarily, if not solely, on
the ground that it was “mere speculation.” The court allowed the testimony to be read
to the jury.
{60} 	On appeal, Plaintiffs claim reversible error in admitting this testimony on the
grounds that (1) the testimony was a critical piece of evidence for Defendants, because
without it the AB buckle demonstrably failed Takata’s own test requirements, and
with the two-kilogram-force limit added to the test, Defendants intended to show that
the buckle passed the test; and (2) the testimony was “incompetent, speculative and
false” and should not have been allowed in order to demonstrate that the buckle was
not defective because it passed the press-ball test when performed with no more than
two kilograms of force to the ball. 	Thus, Plaintiffs contend that the district court
committed prejudicial error by allowing a defense witness to go outside of Takata’s
written test protocol and to speculate that the buckle could meet a particular test that
Takata used in determining the susceptibility of the buckle to accidental release.

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{61} 	The written test, known as “Test 33” and also apparently referred to as an
“elbow test,” involved the use of various diameter steel balls pushed against the AB
buckle release button. Plaintiffs’ approach at trial was to show that under Test 33 a
thirty-millimeter-diameter ball was used with unmeasured force to test if the buckle
would open, and once the buckle failed this test, the result would be that the buckle
did not meet Takata’s specifications. Important for Plaintiffs’ arguments, the written
protocol for Test 33 did not contain any specification or description of a quantitative
maximum force to be applied when pushing on the release button with the thirty-
millimeter-diameter ball. One or more of Plaintiffs’ experts demonstrated that the AB
buckle could be opened by pressing a thirty-millimeter ball against the buckle release
button with a modest but unmeasured force akin to an elbow pressing on the buckle
button.
{62} 	Plaintiffs complain that Defendants had a Takata engineer make up two test
conditions that were not in the protocol and were of trivial quantitative force that
would not open or deform the buckle when Defendants recognized that the AB buckle
failed Takata’s written test protocol.
{63} 	The testimony on the two-kilogram measurement at issue was essentially as
follows:
Q. 	And is there any measurement of the load or is it just that
the person can push the ball with whatever load he is comfortable with

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so long as it does not bend or deform the housing or other parts?
. . . .
THE WITNESS: 	The person who opens doing this testing would
be intentionally trying to cause the opening or separation. . . .
Perhaps it is more likely that the separation or opening would
occur. [The load is applied at the level that no deformation would be
caused.]
So perhaps it would be along the level of two kilograms or so, I
would imagine.
Pressed further with the question whether he measured it, the witness answered, “I’m
guessing, but it would be about two kilograms.” Thus, Plaintiffs contend that the two-
kilogram testimony was speculative; whereas, Defendants contend that it was an
estimation based on the witness’s personal involvement in developing the AB buckle
for Takata, that the load is such that you do not deform the outer housing of the
buckle, and that the issue is not admissibility, but weight and credibility.
{64} 	We are not persuaded that the district court committed reversible error. “Our
courts have repeatedly recognized that the trial court is in the best position to evaluate
the effect of trial proceedings on the jury.” Norwest Bank N.M., N.A., 1999-NMCA-
070, ¶ 39; see Romero v. State, 112 N.M. 332, 334, 815 P.2d 628, 630 (1991) (“The
trial court [is] in the best position to determine if, in the overall context of the case,
evidence . . . was relevant.”), receded from on different grounds by Dunleavy v.

45
Miller, 116 N.M. 353, 862 P.2d 1212 (1993).
For this reason, the trial court is vested with broad discretion to
determine under Rule 11-403 whether the probative value of evidence is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury. We will not disturb the trial court’s
decision on appeal unless that discretion is abused. 	We will find an
abuse of discretion when the court’s decision is without logic or reason,
or that it is clearly unable to be defended.
Norwest Bank N.M., N.A., 1999-NMCA-070, ¶ 39 (internal quotation marks and
citations omitted). 	“[T]he complaining party on appeal must show the erroneous
admission . . . of evidence was prejudicial in order to obtain a reversal.” Cumming v.
Nielson’s, Inc., 108 N.M. 198, 203-04, 769 P.2d 732, 737-38 (Ct. App. 1988). This
burden includes having to show a “high probability that the improper evidence may
have influenced the factfinder.” 	Santa Fe Custom Shutters & Doors, Inc. v. Home
Depot U.S.A., Inc., 2005-NMCA-051, ¶ 32, 137 N.M. 524, 113 P.3d 347 (internal
quotation marks and citation omitted). “The admission of expert testimony is within
the sound discretion of the court and its decision will not be overturned unless an
abuse of discretion is shown.” Leithead v. City of Santa Fe, 1997-NMCA-041, ¶ 27,
123 N.M. 353, 940 P.2d 459.
{65} 	We hold that the district court did not abuse its discretion in allowing the two-
kilogram testimony to be read to the jury along with the remainder of the testimony
that was elicited by Plaintiffs. The witness’s credibility and the weight to be given to

46
the testimony were for the jury.
CONCLUSION
{66} 	The district court did not abuse its discretion in denying Plaintiffs’ motion for
a new trial based on claims of juror misconduct, of improper comments in opening
statement, and of erroneous evidentiary rulings. We affirm the defense verdict.
{67} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

RODERICK T. KENNEDY, J udge

LINDA M. VANZI, Judge

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