Morga v. FedEx Ground Package Sys., Inc.

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: May 19, 2022

4 NO. S-1-SC-36918

5 ALFREDO MORGA, Individually
6 and on behalf of the Estate of
7 YLAIRAM MORGA, Deceased,
8 and as Next Friend of
9 YAHIR MORGA, Minor Child;
10 and RENE VENEGAS LOPEZ,
11 Individually and as the Administrator
12 of the Estate of MARIALY RUBY
13 VENEGAS MORGA, Deceased, and
14 GEORGINA LETICIA VENEGAS, Individually,

15 Plaintiffs-Respondents,

16 v.

17 FEDEX GROUND PACKAGE SYSTEM, INC.,
18 RUBEN’S TRUCKING, LLC a/k/a
19 RUBEN REYES a/k/a SHOOTER’S EXPRESS
20 TRUCKING, INC., the Estate of ELIZABETH
21 SENA QUINTANA, and M&K’S TRUCKING, INC.,

22 Defendants-Petitioners.

23 ORIGINAL PROCEEDING ON CERTIORARI
24 Francis J. Mathew, District Judge

25 Rodey, Dickason, Sloan, Akin & Robb, P.A.
26 Edward R. Ricco
1 Jeffrey M. Croasdell
2 Jocelyn C. Drennan
3 Brenda M. Saiz
4 Albuquerque, NM

5 Goodwin Procter LLP
6 William M. Jay
7 Washington, DC

8 for Petitioners

9 Cervantes Law Firm, P.C.
10 K. Joseph Cervantes
11 Las Cruces, NM

12 Scherr & Legate, PLLC
13 James Franklin Scherr
14 Sam Jackson Legate
15 El Paso, TX

16 L. Helen Bennett, P.C.
17 Linda Helen Bennett
18 Albuquerque, NM

19 Daniel Anchondo
20 El Paso, TX

21 for Respondents

22 Jarmie & Rogers, P.C.
23 Mark Standridge
24 Las Cruces, NM

25 for Amicus Curiae
26 New Mexico Defense Lawyers Association
1 Butt, Thornton & Baehr, P.C.
2 Monica R. Garcia
3 Rheba Rutkowski
4 Albuquerque, NM

5 for Amicus Curiae
6 Trucking Industry Defense Association
1 OPINION

2 VARGAS, Justice.

3 {1} This case highlights the respective roles that the district court judge and the

4 jury each serve in the inherently difficult task of awarding monetary damages for

5 nonmonetary injuries. The jury awarded four Plaintiffs a total of more than $165

6 million in damages to compensate them for a tragic accident that claimed half of a

7 young family in a single instant and left surviving family members physically and

8 emotionally injured. Defendants appealed the verdict as excessive, contending it was

9 not supported by substantial evidence and was tainted by passion or prejudice. The

10 Court of Appeals affirmed the verdict. Morga v. FedEx Ground Package Sys., Inc.,

11 2018-NMCA-039, ¶ 1, 420 P.3d 586. We granted certiorari to consider whether the

12 Court of Appeals erred by (1) applying an abuse of discretion standard to review the

13 district court’s denial of Defendants’ motion for a new trial because the ruling was

14 made by a successor judge who did not oversee the trial, and (2) affirming the district

15 court’s denial of Defendants’ motion for a new trial on grounds that the verdict was

16 excessive. We conclude that the Court of Appeals did not err in either respect. First,

17 because we review claims of excessive verdicts de novo, we need not adopt a new

18 standard of review for decisions of successor judges assigned under the

19 circumstances of this case, as requested by Defendants, and we decline to do so.
1 Next, we conclude under our current law that substantial evidence supported the

2 verdict and the record does not reflect that the verdict was tainted by passion or

3 prejudice. We therefore affirm the Court of Appeals.

4 I. BACKGROUND

5 {2} The facts of this case are nothing short of tragic. In the predawn hours of June

6 22, 2011, a semi-truck hauling double trailers crashed at high-speed into the back of

7 a small pickup truck driven by Marialy Morga. The semi-truck was operated by

8 FedEx Ground Package System, Inc. (FedEx) and driven by Elizabeth Quintana,

9 who was employed by independent contractors of FedEx (collectively, Defendants).

10 {3} At the time of the accident, Marialy had her flashers on and was either stopped

11 or moving very slowly traveling west in the right-hand lane. A witness to the

12 accident testified that he watched as the FedEx semi-truck came upon Marialy’s

13 pickup truck without slowing down or taking any evasive action. He explained that

14 [i]t seemed that the driver of the FedEx truck never saw the [pickup]
15 truck. It just overtook it. On impact . . . the double trailers in the back,
16 the back trailer bucked, moved up, and they buckled and folded
17 forward. The cab of the FedEx truck collapsed in on itself on top of the
18 small truck,

19 demolishing the pickup truck and creating a black cloud that enveloped the entire

20 scene. The FedEx semi-truck was traveling at sixty-five-miles per hour when it hit

21 the pickup truck. The record indicates Elizabeth Quintana was distracted when she

2
1 hit the pickup truck, did not attempt to brake prior to the collision, and simply ran

2 right over the pickup truck, causing an “extremely severe impact” that “absolutely

3 destroyed” it.

4 {4} The impact claimed the lives of Elizabeth Quintana, twenty-two-year-old

5 Marialy, and her four-year-old daughter Ylairam. Marialy’s toddler son Yahir

6 survived but was critically injured.

7 A. District Court Proceedings

8 {5} Alfredo Morga, individually, as personal representative of Ylairam, and as

9 next friend of Yahir, filed suit against Defendants seeking damages including those

10 for Ylairam’s wrongful death, Yahir’s physical injuries, and Mr. Morga’s own

11 emotional and physical injuries and loss of consortium of his wife and daughter.

12 Marialy’s father, Rene Venegas Lopez, brought suit for Marialy’s wrongful death as

13 personal representative of her estate.1 Plaintiffs sought compensatory damages,

14 including noneconomic damages, and punitive damages for their injuries and

15 Marialy’s and Ylairam’s wrongful deaths.

16 {6} At the close of the evidence, the jury was instructed to consider economic

17 damages in the form of funeral and burial costs, lost value of household services and

1
Alfredo Morga and Rene Venegas Lopez are referred to collectively as
“Plaintiffs.”

3
1 earning capacity considering their respective “health, habits, and life expectanc[ies]”

2 for the loss of Ylarim and Marialy, as well as noneconomic damages for the value

3 of their lives “apart from . . . earning capacity” and the loss of parental guidance and

4 counseling from Marialy to her son, Yahir. With respect to damages to Alfredo and

5 Yahir, the jury was instructed to consider economic damages for “medical care,

6 treatment and services received and the present cash value of the reasonable

7 expenses of medical care, treatment and services reasonably certain to be received

8 in the future[, t]he nature, extent and duration of the injury,” and any exacerbation

9 of a prior injury. In awarding noneconomic damages, the jury was also instructed to

10 consider the past and future pain and suffering, 2 loss of enjoyment of life, and

11 emotional distress suffered as a result of the accident.

12 {7} The district court directed the jury that in determining the amount awarded,

13 there was no fixed method of valuing noneconomic damages including pain and

14 suffering or loss of enjoyment of life, and that jurors were to use “the enlightened

2
Pain and suffering as an element of noneconomic damages was limited to the
claims raised by Alfredo and Yahir. Because Defendants’ expert testified that death
for both Marialy and Ylairam was instantaneous and Plaintiffs did not present
evidence that there was a period of pain and suffering between the time of impact
and death, the district court dismissed Plaintiff’s claims for pain and suffering for
Marialy and Ylairam.

4
1 conscience of impartial jurors acting under the sanctity of [their] oath to compensate

2 the beneficiaries with fairness to all parties to this action.” The jury was further

3 cautioned in multiple instructions that the verdict must be based on the evidence

4 presented and that “sympathy or prejudice for or against a party should not affect

5 [the] verdict and [was] not a proper basis for determining damages.”

6 {8} The jury entered its verdict, awarding damages totaling $61,000,000 for the

7 wrongful death of Ylairam Morga, $32,000,000 for the wrongful death of Marialy

8 Morga, $32,000,000 for the personal injury to Yahir Morga, $40,125,000 for the

9 personal injury to Alfredo Morga, $208,000 for the damages suffered by Rene

10 Venegas, and $200,000 for the damages suffered by Georgina Venegas. 3

11 {9} Following the entry of the verdict, the district court judge recused herself after

12 participating in an ex-parte communication with Plaintiffs’ counsel. A successor

13 judge was appointed pursuant to Rule 1-063 NMRA.

14 {10} Defendants timely filed a motion for a new trial or remittitur 4 on the ground

15 that the verdict was excessive, arguing that it was not supported by substantial

The claims of Mr. Venegas and Ms. Venegas, the parents of Marialy Morga,
3

were settled while this case was pending before the Court of Appeals and are not at
issue here.
4
Defendants did not request the relief of remittitur on appeal, nor did they
rebut Plaintiffs’ claim of abandonment in their reply brief or request it of this Court
at oral argument. Therefore, we conclude that Defendants’ remittitur argument has

5
1 evidence and was tainted by passion or prejudice. The successor judge heard

2 argument on this motion and ultimately denied the motion, finding that substantial

3 evidence supported the verdict and that the verdict was not tainted by passion or

4 prejudice. Defendants appealed to the Court of Appeals.

5 B. The Decision of the Court of Appeals

6 {11} Applying an abuse of discretion standard, the Court of Appeals affirmed the

7 verdict and the successor judge’s denial of a new trial or remittitur, concluding that

8 the verdict was supported by substantial evidence and was not tainted by passion or

9 prejudice. Morga, 2018-NMCA-039, ¶¶ 1, 25, 37, 52. The Court of Appeals rejected

10 Defendants’ invitation to apply a de novo standard of review to the successor judge’s

11 decision and emphasized the value New Mexico’s judiciary places on juries and

12 district courts to determine the value of human life. See id. ¶¶ 10, 25. While the Court

13 of Appeals applied an abuse of discretion standard of review to the successor judge’s

14 decision to deny Defendants’ motion for a new trial or remittitur, it acknowledged

15 that “even when we review for an abuse of discretion, our review of the application

16 of the law to the facts is conducted de novo.” Id. ¶ 8.

been abandoned, and we will not address it. City of Sunland Park v. Santa Teresa
Servs. Co., 2003-NMCA-106, ¶ 81, 134 N.M. 243, 75 P.3d 843 (explaining that
arguments raised below but not on appeal are deemed abandoned); State v. Aragon,
1990-NMCA-001, ¶ 2, 109 N.M. 632, 788 P.2d 932 (providing that issues not
briefed on appeal are deemed abandoned).

6
1 {12} The Court of Appeals set forth all of the compensatory damage evidence

2 individually for each Plaintiff and held that substantial evidence supported the

3 verdict, id. ¶¶ 14-23, concluding that Defendants did not “identif[y] any of Plaintiffs’

4 evidence deemed insufficient to support the jury’s award of non-economic damages”

5 or explain the “type of additional evidence . . . necessary to support such an award.”

6 Id. ¶ 29. The Court of Appeals also found that Defendants failed to meet their burden

7 to show that passion, prejudice, sympathy, or mistake affected the verdict,

8 concluding that none of the instances Defendants pointed to were sufficient to make

9 such an inference. Id. ¶¶ 32, 46. Upon petition by Defendants, this Court granted

10 certiorari.

11 II. DISCUSSION

12 A. Defendants Are Not Entitled To a De Novo Standard of Review on Their
13 Motion for a New Trial
14 {13} Under the circumstances of this case, Defendants encourage us to deviate from

15 our long-standing practice of reviewing denials of motions for a new trial under an

16 abuse of discretion standard. Defendants instead contend that because the successor

17 judge did not oversee the trial, his denial of their motion for a new trial should be

18 reviewed de novo. Defendants argue that the decision of a successor judge is not

19 entitled to the deference incorporated into a review for an abuse of discretion. Rather,

20 Defendants reason, such deference should be reserved for the judge who participated

7
1 in the trial and had the opportunity to observe the witnesses and the jury. Defendants

2 ask us to instead adopt a de novo standard of review for decisions of a successor

3 judge, and contend that under this standard the verdict here is excessive. We

4 disagree, and decline to adopt a different standard of review here.

5 {14} Defendants’ standard of review argument misunderstands the application of

6 the existing standards to this case. “The district court has broad discretion in granting

7 or denying a motion for new trial, and such an order will not be reversed absent clear

8 and manifest abuse of that discretion.” Saenz v. Ranack Constructors, Inc., 2018-

9 NMSC-032, ¶ 19, 420 P.3d 576 (internal quotation marks and citation omitted); see

10 also Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 13,

11 146 N.M. 853, 215 P.3d 791 (“[T]he denial of a motion for a new trial or remittitur

12 is [reviewed for an] abuse of discretion.”). An abuse of discretion occurs when the

13 lower court’s decision is contrary to law, logic, or reason. See Perkins v. Dep’t of

14 Hum. Servs., 1987-NMCA-148, ¶ 19, 106 N.M. 651, 748 P.2d 24 (providing that the

15 district court abuses its discretion if its decision “has not proceeded in the manner

16 required by law” or “is contrary to logic and reason”) (internal quotation marks and

17 citation omitted). And, in the context of a motion for a new trial based on an

18 excessive verdict, a district court abuses its discretion when it fails to exercise its

19 discretion in the first instance “despite the predicate findings and the court’s

8
1 conviction that the award should be reduced,” Sandoval v. Chrysler Corp., 1998-

2 NMCA-085, ¶ 12, 125 N.M. 292, 960 P.2d 834, or when it “misapprehends the law

3 or if the decision is not supported by substantial evidence.” Brooks v. Norwest Corp.,

4 2004-NMCA-134, ¶ 7, 136 N.M. 599, 103 P.3d 39. “[W]here it is shown . . . that the

5 verdict of the jury on the question of damages is clearly not supported by substantial

6 evidence adduced at the trial of the case, a motion for a new trial should be granted,

7 and not to do so is an abuse of discretion.” Jones v. Pollock, 1963-NMSC-116, ¶ 12,

8 72 N.M. 315, 383 P.2d 271. In other words, it is an abuse of discretion to deny a

9 motion for a new trial when the district court finds that substantial evidence does not

10 support the verdict. See Chrysler Corp., 1998-NMCA-085, ¶¶ 1, 11-12 (holding that

11 the district court “abused its discretion in failing to act upon its findings regarding

12 an excessive verdict” when the judge “repeatedly stated that the jury’s award of

13 damages shocked the conscious of the court” but denied a motion for remittitur or

14 new trial).

15 {15} While we review the denial of a motion for a new trial for an abuse of

16 discretion, whether a verdict is excessive is reviewed as a matter of law, Coates v.

17 Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 49, 127 N.M. 47, 976 P.2d 999, and we

18 review matters of law de novo, “without deference to the district court’s legal

19 conclusions.” Primetime Hosp., Inc. v. City of Albuquerque, 2009-NMSC-011, ¶ 10,

9
1 146 N.M. 1, 206 P.3d 112. Only after we have conducted our de novo review and

2 determined whether the jury’s verdict was excessive do we consider whether the

3 district court abused its discretion by denying Defendants’ motion for a new trial.

4 See Chrysler Corp., 1998-NMCA-085, ¶¶ 11-12 (holding that the district court

5 abused its discretion when it concluded that insufficient evidence supported the

6 damage award but denied the defendant’s motion for a new trial). Under the

7 circumstances, we see no reason to deviate from our traditional standard of review

8 for a denial of a motion for a new trial, as our review of the size of the jury’s verdict

9 to determine whether it was excessive is de novo.

10 B. The Verdict Is Not Excessive As a Matter of Law

11 {16} Defendants do not contest liability or the economic damages awarded to

12 Plaintiffs in this case. Rather, they claim it is the award of noneconomic

13 damages⸻those most difficult to assess—that render the verdict excessive and

14 mandate a new trial. See Chrysler Corp., 1998-NMCA-085, ¶ 13 (noting the

15 difficulty in calculating noneconomic damages).

16 {17} A new trial is appropriate when “the jury’s award of damages is so grossly out

17 of proportion to the injury received as to shock the conscience.” Id. ¶ 9 (brackets,

18 internal quotation marks, and citation omitted). As we review whether an award

19 shocks the conscience, we do not weigh the evidence but determine whether the

10
1 verdict is excessive as a matter of law. See Coates, 1999-NMSC-013, ¶ 49. The

2 jury’s award is excessive if (1) “the evidence, viewed in the light most favorable to

3 [the] plaintiff, [does not] substantially support[] the award,” or (2) “there is an

4 indication of passion, prejudice, partiality, sympathy, undue influence[,] or a

5 mistaken measure of damages on the part of the fact finder.”5 Gonzales v. Gen.

6 Motors Corp., 1976-NMCA-065, ¶ 30, 89 N.M. 474, 553 P.2d 1281; see also

7 Chrysler Corp., 1998-NMCA-085, ¶ 9 (same).

8 {18} As we conduct our de novo review to determine whether the verdict was

9 excessive, we remain mindful of both the inherently difficult task of assigning

10 monetary value to nonmonetary losses and the proper roles that the jury and the

11 district court judge play in making this determination. The valuation of noneconomic

12 damages is an “inexact undertaking at best,” and “there can be no standard fixed by

13 law for measuring the value of [noneconomic damages].” Chrysler Corp., 1998-

14 NMCA-085, ¶ 13 (internal quotation marks and citation omitted). Given the

15 difficulty, as well as the lack of a fixed standard, in assessing noneconomic loss, it

16 is well settled that this valuation is left to the jury. See Herbert M. Kritzer et al., An

17 Exploration of “Noneconomic” Damages in Civil Jury Awards, 55 Wm. & Mary L.

5
For brevity, we refer to this second test simply as “passion or prejudice.”

11
1 Rev. 971, 980 (2014) (explaining that placing monetary value on noneconomic harm

2 “requires human judgment to convert the injury into a monetary sum, typically

3 determined by a jury”); Baxter v. Gannaway, 1991-NMCA-120, ¶ 15, 113 N.M. 45,

4 822 P.2d 1128 (acknowledging that given the lack of a fixed standard the amount

5 awarded “is left to the fact finder’s judgment”); Dimick v. Shiedt, 293 U.S. 474, 480

6 (1935) (“[I]n cases where the amount of damages [is] uncertain their assessment [is]

7 a matter so peculiarly within the province of the jury that the Court should not alter

8 it.” (internal quotation marks and citation omitted)).

9 {19} While it is the jury’s role to determine the amount of damages, our case law

10 makes clear that the district court judge and the jury each serve a distinct role in trial

11 proceedings. “It is a fundamental function of a jury to determine damages,” and “its

12 verdict is presumed to be correct.” Allsup’s Convenience Stores, Inc. v. N. River Ins.

13 Co., 1999-NMSC-006, ¶ 16, 127 N.M. 1, 976 P.2d 1 (internal quotation marks and

14 citation omitted). At the same time, a district court judge “is empowered to, with

15 discretion, provide stability and order during the proceedings,” keeping in mind that

16 “the judge is a very potent figure, who must not use the position to exert power or

17 influence over the jury.” Id. The district court judge’s “experience with juries in the

18 community provides an indispensable safeguard built into our American civil jury

19 system.” Chrysler Corp., 1998-NMCA-085, ¶ 14.

12
1 [T]he best way to arrive at a reasonable award of damages is for the
2 [district court] judge and the jury to work together, each diligently
3 performing its respective duty to arrive at a decision that is as fair as
4 humanly possible under the facts and circumstances of a given case.

5 Id. ¶ 16. “When the jury makes a determination and the [district] court approves, the

6 amount awarded in dollars stands in the strongest position known in the law.” Id. ¶

7 14 (internal quotation marks and citation omitted). “The jury must be the exclusive

8 evaluator of the evidence and the credibility of witnesses, with the [district] court

9 only intervening when the jury’s verdict is so against the weight of evidence that it

10 would be a grave injustice to allow the verdict to stand.” Rhein v. ADT Auto., Inc.,

11 1996-NMSC-066, ¶ 24, 122 N.M. 646, 930 P.2d 783. Taking the respective roles of

12 the judge and jury into consideration, this Court will not disturb a jury’s verdict

13 except “in extreme cases.” Martinez v. Teague, 1981-NMCA-043, ¶ 14, 96 N.M.

14 446, 631 P.2d 1314.

15 {20} We recognize that under the circumstances of this case, the collaborative

16 relationship between the district court judge and jury was disrupted by the recusal of

17 the district court judge after the verdict was entered, preventing her from considering

18 Defendants’ motion for a new trial. However, Defendants received a thorough

19 review of the record by the successor judge pursuant to Rule 1-063, which allows a

20 successor judge to proceed “upon certifying familiarity with the record and

21 determining that the proceedings in the case may be completed without prejudice to

13
1 the parties.” Here, the record reflects the successor judge took more than five months

2 to review the extensive record in this matter. The successor judge explained at the

3 hearing and certified in his order denying Defendants’ motion for a new trial, that

4 he had reviewed the pleadings, testimony, and the record. His review was evident

5 from his extensive knowledge of the record and is reflected in his reasoned

6 discussion of the close relationship Marialy shared with her parents, familiarity with

7 objections sustained at trial, and the jurors’ responses on the special verdict form.

8 Defendants also received the benefit of the successor judge’s experience with juries

9 in the community, see Chrysler Corp., 1998-NMCA-085, ¶ 14 (recognizing a

10 judge’s experience with juries in the community as an “indispensable safeguard”),

11 allowing for a complete review of Defendants’ motion.

12 1. The verdict is supported by substantial evidence

13 {21} To determine if a verdict is supported by substantial evidence, “[t]he proper

14 approach is to examine [the p]laintiff’s evidence related to damages and determine

15 whether that evidence could justify the amount of the verdict.” Baker Hughes

16 Oilfield Operations, Inc., 2009-NMCA-095, ¶ 22. We compare the amount awarded

17 to the injury received and consider whether “the amount awarded is so grossly out

18 of proportion . . . as to shock the conscience.” Lujan v. Reed, 1967-NMSC-262, ¶

19 32, 78 N.M. 556, 434 P.2d 378 (internal quotation marks and citation omitted). We

14
1 will not disturb the jury’s verdict unless “[t]he weight of evidence [is] clearly and

2 palpably contrary to the verdict, and a new trial will only be granted where it is

3 manifest to a reasonable certainty that justice has not been done.” Ruhe v. Abren,

4 1857-NMSC-013, ¶ 10, 1 N.M. 247.

5 {22} Defendants contend that the $165 million verdict “far exceeds the sum the

6 evidence can support,” directing our attention to two circumstances of the verdict to

7 prove their point. First, Defendants claim that the verdict is excessive in comparison

8 to other verdicts, exceeding any prior wrongful death verdict. Second, Defendants

9 argue that the excessive nature of the verdict is evident from the significant disparity

10 between Plaintiffs’ proven economic damages and the total award. We are not

11 persuaded.

12 a. We are skeptical of the value of comparing verdicts and reject
13 Defendants’ comparisons

14 {23} Arguing that “none of the relevant testimony revealed the existence of non-

15 economic injuries that would be out of the ordinary for a case of this type,”

16 Defendants contend that the verdict’s “excessiveness is confirmed by the fact that

17 the award exceeds any prior wrongful-death verdict in this state.” To support their

18 point, Defendants invite us to compare the jury’s award to other verdicts, contending

19 that comparison is helpful to analyze whether a verdict is “supported by the

20 evidence.”

15
1 {24} To be sure, this Court has previously acknowledged that because “value[s] of

2 all things are arrived at on a relative basis,” a comparison of verdicts along with the

3 facts and circumstances of a case is sometimes helpful. Vivian v. Atchinson, Topeka

4 & Santa Fe Ry. Co., 1961-NMSC-093, ¶ 11, 69 N.M. 6, 363 P.2d 620. However, our

5 Court of Appeals has cautioned about the usefulness of such comparisons, noting

6 that they “are not a proper basis for determining either excessiveness or inadequacy

7 of damages . . . because the propriety of the amount of the damages awarded must

8 be determined from the evidence in the case under consideration.” Schrib v.

9 Seidenberg, 1969-NMCA-078, ¶ 20, 80 N.M. 573, 458 P.2d 825. Indeed, as we noted

10 in Hanberry v. Fitzgerald, “there can be no true comparison drawn between this and

11 any other case which has been brought to our attention.” 1963-NMSC-100, ¶ 35, 72

12 N.M. 383, 384 P.2d 256; see also Maisel v. Wholesome Dairy, Inc., 1968-NMCA-

13 038, ¶ 9, 79 N.M. 310, 442 P.2d 800 (“What this court may have done in other cases,

14 or what courts of other jurisdictions may have decided in cases involving similar

15 injuries, is of no consequence.” (internal quotation marks and citation omitted)).

16 Because each case must be decided on its own facts and circumstances, judges are

17 not bound by those comparisons. Vivian, 1961-NMSC-093, ¶ 11.

18 {25} In this case, Defendants did not provide the district court or the Court of

19 Appeals with any comparable verdicts and instead relied solely on their assertion

16
1 that the verdict was the largest in the history of the State “for wrongful death or

2 comparable loss.” However, on appeal to this Court, Defendants did provide some

3 verdicts for comparison and at oral argument urged us to compare the verdict in this

4 case to that of Wachocki v. Bernalillo Cnty. Sheriff’s Dep’t, 2010-NMCA-021, 147

5 N.M. 720, 228 P.3d 504. A comparison of this case to the Wachocki case only

6 highlights why we hesitate to make such comparisons and why each case must be

7 decided on its own facts and circumstances. See Vivian, 1961-NMSC-093, ¶ 11

8 (explaining each case must be decided on its own facts and circumstances).

9 Wachocki was not decided by a jury, and the only similarity between this case and

10 the Wachocki case is the fact that the decedent there and Marialy Morga were both

11 twenty-two years old at the time of their deaths. Wachocki, 2010-NMCA-021, ¶ 3.

12 The Wachocki decedent was a single man who lived with his brother and had no

13 dependents. Id. ¶ 14. The district court in that case assessed the decedent’s damages

14 at $3.7 million, id. ¶ 13, as compared to $32 million awarded to the estate of Marialy

15 Morga for her wrongful death. The difficulty in comparing the two cases becomes

16 obvious when one considers that the award to Marialy Morga’s estate for her

17 wrongful death included, among other things, the loss of her opportunity to provide

18 parental guidance and counseling to her children and build the life she had planned

19 with her husband, damages that the Wachocki decedent did not appear to suffer. This

17
1 is not to say that the Wachocki decedent’s life was any less important or valuable.

2 Instead, these differences serve to show the difficulty of comparing verdicts in cases

3 where plaintiffs come to the court in very different circumstances, despite some

4 similarities. The comparison becomes even more problematic when it is extended to

5 the damages awarded to additional Plaintiffs in this case who each suffered their

6 own independent injuries and who share no apparent similarities with the Wachocki

7 decedent.

8 {26} While the combined verdict for the four Plaintiffs in this case may exceed

9 other wrongful death verdicts rendered by New Mexico Courts, we note that at least

10 one New Mexico jury has issued a verdict comparable to the individual verdicts

11 rendered for Plaintiffs. Hein v. Utility Trailer Mfg. Co., D-101-CV-2016-01541, is

12 a wrongful death case involving the death of sixteen-year-old Riley Hein, who, like

13 Marialy and Ylairam Morga, was killed in a trucking accident. Id., Complaint for

14 Wrongful Death and Loss of Consortium (1st Jud. Dist. Ct. June 22, 2016). The Hein

15 jury concluded that the damages for Riley’s death were $38 million.6 Id., Special

16 Verdict Form (1st Jud. Dist. Ct. Aug. 23, 2019). That award was more than this jury

6
The jury then apportioned fault between the defendant and a third party.

18
1 awarded for the death of Marialy but less than it awarded for the death of Ylairam.7

2 Taking all of this into account, we are not convinced that any of the cases Defendants

3 point to offer a meaningful comparison to the case at hand. And Defendants’

4 comparison of the award in this case with the award in Wachocki illustrates why we

5 remain “skeptical about the usefulness of comparing awards for [noneconomic

6 damages] in other cases.” Baker Hughes Oilfield Operations, Inc., 2009-NMCA-

7 095, ¶ 18. Rather, the “amount of awards necessarily rests with the good sense and

8 deliberate judgment of the tribunal assigned by law to ascertain what is just

9 compensation, and in the final analysis, each case must be decided on its own facts

10 and circumstances.” Id. (brackets, internal quotation marks, and citation omitted).

11 b. We reject Defendants’ invitation to compare economic and
12 noneconomic damages to determine whether the verdict is excessive

13 {27} Defendants also point to the disparity between the economic and

14 noneconomic damages awarded to support their claim that the jury’s award was

15 excessive. The Court of Appeals rejected Defendants’ argument to establish

16 excessive jury verdicts by comparing economic and noneconomic damages,

Following the entry of the verdict but before a judgment was entered in the
7

Hein matter, the parties resolved all disputes and claims between them and dismissed
the case. Id., Stipulated Order of Dismissal with Prejudice (1st Jud. Dist. Ct. Mar.
23, 2020).

19
1 referring to such a comparison as a “fixed mathematical formula[]” which is not “the

2 proper basis for reversing a jury’s non-economic damage award.” Morga, 2018-

3 NMCA-039, ¶ 31. Because there is frequently no readily identifiable relationship

4 between economic damages and noneconomic damages, we agree with the Court of

5 Appeals that placing noneconomic damages in a ratio with economic damages is not

6 a proper method for determining whether the verdict is supported by substantial

7 evidence. Doing so fails to account for severe harm that results even absent

8 pecuniary loss.

9 {28} “Noneconomic damages include pain and suffering, future pain and

10 discomfort, disfigurement, loss of enjoyment of life, mental anguish, and loss of

11 consortium.” 63B Am. Jur. 2d Products Liability § 1754 (2010) (footnotes omitted).

12 Noneconomic damages also include the value of life itself. See Romero v. Byers,

13 1994-NMSC-031, ¶¶ 4, 25, 117 N.M. 422, 872 P.2d 840 (holding that the value of

14 life itself is a compensable element of noneconomic damages). “By their very nature

15 noneconomic damages are conceptually a contradiction in terms: they provide

16 monetary compensation for an injury that is intangible in monetary terms.” Kritzer

17 et al., supra, at 975. A person can suffer severe injuries and even lose his or her own

18 life without incurring significant economic loss. Id. at 980. “[T]he important

19 substantive and methodological consequence of this observation is that using

20
1 economic loss as the denominator for assessing noneconomic losses can be very

2 misleading because economic loss does not always capture the severity of the injury

3 in terms of the noneconomic consequences of that injury.” Id.

4 {29} Defendants acknowledged that “[t]here is no way to calculate [noneconomic]

5 damage. This should be left up to the trier of fact.” Defense counsel stated to the jury

6 in closing argument, “I am not going to submit to you a number, because I agree the

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

8 you have to rely on your own consciousness [sic] when you’re looking at value of

9 life,” and “I have a lot of faith in the [j]ury system. I recommend to clients to go to

10 a [j]ury, rely on a [j]ury. And I trust that all of you will look at this evidence and do

11 the right thing.”

12 {30} We recognize that some elements of a plaintiff’s economic damages may bear

13 a relationship to a plaintiff’s noneconomic harm, but most do not. An award of

14 significant past and future medical expenses to treat a plaintiff’s severe injuries may

15 support an equally significant award of noneconomic damages for the plaintiff’s pain

16 and suffering. However, in a case such as this one where Marialy Morga and Ylairim

17 Morga did not survive the impact of the accident and therefore did not incur any

18 medical expenses but were deprived of life itself, including all the joys and benefits

19 that accompany it, the relationship becomes more difficult to quantify. The

21
1 correlation becomes even more problematic when evaluating noneconomic damages

2 for a plaintiff with significant future earning capacity versus one with limited earning

3 capacity. To allow such a relationship would unfairly benefit wealthier plaintiffs and

4 place less value on the pain and suffering, and even on the lives, of those of less

5 wealth. Tethering noneconomic harm to economic damages places a thumb on the

6 scale for wealthier plaintiffs when pecuniary loss is merely one aspect of total injury

7 and does not account for severe nonmonetary harm a plaintiff may suffer.

8 {31} Indeed, this Court has long held that “recovery [for wrongful death] may be

9 had even though there is no pecuniary injury.” Stang v. Hertz Corp., 1970-NMSC-

10 048, ¶ 7, 81 N.M. 348, 467 P.2d 14. While some courts have held that the existence

11 or lack of pecuniary damages is a factor to be considered in placing a dollar amount

12 on a human life, see Martinez v. Cont’l Tire Americas, LLC, 476 F. Supp. 3d 1137,

13 1142 (D.N.M. 2020) (“The presence or absence of pecuniary damages is a factor to

14 be considered in arriving at a monetary figure for the value of the deceased’s life.”

15 (internal quotation marks and citation omitted)), this Court made clear that “the

16 [Wrongful Death] Act goes beyond the loss of decedent’s wages, and encompasses

17 all damages that are fair and just.” Romero, 1994-NMSC-031, ¶ 19. Thus, “the jury

18 in a wrongful death action [must] determine fair and just compensation for the

22
1 reasonably expected nonpecuniary rewards the deceased would have reaped from

2 life as demonstrated by his or her health and habits.” Id. ¶ 17.

3 {32} New Mexico law specifically instructs juries to consider noneconomic

4 damages apart from economic losses. See UJI 13-1830(4) NMRA (providing a

5 separate line for a jury to award damages “apart from . . . decedent[’s] earning

6 capacity”); see also Gutierrez v. Kent Nowlin Const. Co., 1981-NMCA-107, ¶ 16,

7 99 N.M. 394, 658 P.2d 1121 (citing the jury instruction listing earning capacity as a

8 separate element of damages as support for upholding an award greater than the

9 proven economic damages), rev’d on other grounds, Kent Nowlin Const. Co. v.

10 Gutierrez, 1982-NMSC-123, ¶ 2, 99 N.M. 389, 658 P.2d 1116. And, “[i]rrespective

11 of exemplary damages,” Folz v. State, 1990-NMSC-075, ¶ 26, 110 N.M. 457, 797

12 P.2d 246, “substantial” noneconomic damages are permissible under our Wrongful

13 Death Act (Act) because, in addition to compensation, the Act is also intended “to

14 promote safety of life and limb by making negligence that causes death costly to the

15 wrongdoer.” Stang, 1970-NMSC-048, ¶¶ 9, 11. In sum, to tie an award of

16 noneconomic damages to Plaintiffs’ economic damages, as Defendants propose, is

17 contrary to our existing law and would establish a dangerous policy of, in part,

18 valuing human life based on a person’s net worth.

23
1 {33} Reviewing this verdict for excessiveness de novo, as we must, we conclude

2 that substantial evidence supports the verdict. Considering all of the evidence in the

3 light most favorable to the verdict, our deference to juries, and our hesitancy to make

4 comparisons between verdicts and between economic and noneconomic damages,

5 this Court cannot say that the weight of the evidence is clearly and palpably against

6 the verdict and that it would be an injustice to let the verdict stand. See Ruhe, 1857-

7 NMSC-013, ¶ 10 (“The weight of evidence must be clearly and palpably contrary to

8 the verdict, and a new trial will only be granted where it is manifest to a reasonable

9 certainty that justice has not been done.”).

10 {34} To support their damages claim, Plaintiffs presented evidence of the deaths of

11 Marialy and Ylairam Morga, as well as the physical and psychological injuries

12 suffered by Alfredo and Yahir Morga resulting from the accident. The evidence

13 showed that Alfredo’s epilepsy, which had previously been controlled with

14 medication, was exacerbated and that since the accident he has suffered from PTSD

15 and major depressive disorder and would require psychiatric care. Alfredo testified

16 that after the accident, he could not work for a period of three months and when he

17 did return to work, the effects of the accident interfered with his ability to do his job

18 properly such that he had to leave his job and find another occupation. The evidence

19 presented also showed that Yahir suffered damage to his lungs, a head injury, a

24
1 lacerated liver, multiple abrasions and contusions, and a broken leg, all requiring

2 future medical treatment.

3 {35} In addition to these losses, Plaintiffs also presented evidence of noneconomic

4 losses through photographs and the testimony of Marialy’s parents and sister and

5 Alfredo, each of whom described Marialy and Ylairam, the close relationships

6 Alfredo and Yahir had with them, the life they had together, their plans for the future,

7 and the personal loss suffered as a result of their deaths. Alfredo testified about the

8 night of the accident, explaining that when he arrived on the scene, he was warned

9 against approaching the pickup truck where his wife and daughter remained. He

10 testified about going to the hospital in El Paso where his son had been taken after

11 the accident and staying there with his son for several days. Alfredo recounted how

12 he was unable to participate in the planning of Marialy’s and Ylairam’s funeral

13 services because he was with his son at the hospital.

14 {36} Regarding Yahir’s mental state, Plaintiffs presented testimony that Yahir may

15 suffer “increased risk for psychological difficulties” in the future as a result of the

16 early loss of his mother and sister. Plaintiffs also presented testimony that Yahir

17 stopped talking after the accident and began waking at night crying for his mother

18 and father.

25
1 {37} Of note, Defendants do not attempt to explain why the award for each of the

2 individual Plaintiffs is excessive, but instead argue that the cumulative verdict is

3 excessive. To be sure, the cumulative verdict in favor of the four Plaintiffs is large.

4 However, we cannot say that, viewing the evidence in the light most favorable to

5 Plaintiffs, the individual damages awarded for the deaths of Marialy and Ylairam

6 and the injuries incurred by Alfredo and Yahir are so excessive that “it is manifest

7 to a reasonable certainty that justice has not been done.” Ruhe, 1857-NMSC-013, ¶

8 10. Accordingly, the conscience of this Court is not shocked by the jury’s award of

9 damages for the lives of these four Plaintiffs. However, a verdict can be excessive

10 notwithstanding a finding of substantial evidence if it was tainted by passion or

11 prejudice.

12 2. Defendants have not shown that the verdict is a product of passion or
13 prejudice

14 {38} Defendants also argue that the verdict was tainted by passion or prejudice,

15 entitling them to a new trial. While Defendants argue that it is “the plaintiffs’ burden

16 to submit record evidence sufficient to sustain a verdict,” our law is clear that a party

17 appealing the denial of a motion for new trial or remittitur “bears the burden of

18 showing that the record supports its contention that there was error in the verdict.”

19 Coates, 1999-NMSC-013, ¶ 51. That is to say, it is Defendants who “must show that

20 the verdict (i.e., damage awards) was infected with passion, prejudice, partiality,

26
1 sympathy, undue influence, or some corrupt cause or motive.” Id. (internal quotation

2 marks and citation omitted).

3 {39} Defendants raise four issues to support their claim that the jury’s verdict was

4 infected with passion or prejudice. Defendants first point to the size of the verdict as

5 an indication that passion or prejudice tainted the jury’s award. Defendants also

6 point to three aspects of the trial to support their claim. Specifically, they contend

7 that the emotional testimony of Alfredo Morga, an unredacted photograph of the

8 accident scene, and allegedly inflammatory statements made by Plaintiffs’ counsel

9 during closing argument “explain the prejudice that motivated the jury’s verdict.”

10 After reviewing Defendants’ claims, we conclude Defendants did not meet their

11 burden to show that the verdict was tainted by passion or prejudice, as we explain

12 next.

13 a. The size of the verdict alone is insufficient to infer passion or prejudice

14 {40} Initially we note that, while the verdict here is undeniably large, the size of a

15 verdict alone is insufficient to infer it was affected by passion or prejudice unless it

16 is “outrageously excessive and beyond all reason.” Henderson v. Dreyfus, 1919-

17 NMSC-023, ¶ 36, 26 N.M. 541, 191 P. 442; see also Bodimer v. Ryan’s Fam.

18 Steakhouses, Inc., 978 S.W.2d 4, 9 (Mo. Ct. App. 1998) (“[T]he amount of verdict

19 by itself is not enough to establish that verdict was result of bias, passion and

27
1 prejudice.”); Mather v. Griffin Hosp., 540 A.2d 666, 673 (Conn. 1988) (“The size of

2 the verdict alone does not determine whether it is excessive.”). In Henderson, this

3 Court declined to infer passion and prejudice where the only circumstances relied

4 upon by the defendant were “the size of the verdict” and the fact that in many other

5 similar cases “much smaller verdicts have been returned.” 1919-NMSC-023, ¶¶ 49-

6 50. That the court may have awarded a smaller amount than the jury awarded is also

7 insufficient to support disturbing the jury’s verdict. See Baker Hughes Oilfield

8 Operations, Inc., 2009-NMCA-095, ¶ 17 (“[T]he mere fact that a jury’s award is

9 possibly larger than the court would have given is not sufficient to disturb a verdict.”

10 (internal quotation marks and citation omitted)). “In the absence of an unmistakable

11 indication of passion or prejudice, a reviewing court will not set aside a jury’s award

12 of damages unless the amount of the verdict in light of the evidence indicates the

13 jury was influenced by prejudice, passion, or other improper considerations.” Id. ¶

14 20 (internal quotation marks and citation omitted).

15 {41} Defendants also contend that we should infer that passion or prejudice

16 affected the jury’s award because its verdict was greater than the combined amount

17 of punitive and compensatory damages Plaintiffs’ counsel suggested during closing

18 argument. In support of its argument, Defendants first assert that because the

19 combined total compensatory damages awarded to all four Plaintiffs, $165 million,

28
1 exceeds the $140 million in punitive damages suggested by Plaintiffs 8 we can infer

2 that the award was based on a desire to punish Defendants.

3 {42} Defendants rely on Jackson v. Southwestern Public Service Co. for the

4 proposition that counsel’s suggested amount of damages “might have contributed”

5 to a mistaken award when the verdict “was so close to that figure.” 1960-NMSC-

6 027, ¶ 69, 66 N.M. 458, 349 P.2d 1029. In Jackson, after counsel for the plaintiff

7 suggested the plaintiff’s damages for the loss of his leg was $100,000, the jury

8 returned a verdict for $95,000. Id. ¶¶ 68-69. To the extent Defendants have argued,

9 quoting Jackson, that the verdict here “was so close to” Plaintiffs’ suggested punitive

10 award evidencing a mistaken award, we note that here the difference in the suggested

11 punitive damage award and the amount awarded is $25 million, not $5,000. As

12 Plaintiffs pointed out to the successor judge at the post-trial motions hearing, this

13 would have required a $25 million mathematical mistake by the jury.

14 {43} In concluding that the verdict was not “returned as a result of passion,

15 sympathy, or prejudice on the part of the verdict—or the jury,” the successor judge

16 reasoned, “[t]he special verdict form indicates clearly the jur[ors] understood that

17 they were returning a verdict for compensatory damages.” Indeed, the special verdict

8
The jury declined to award punitive damages to Plaintiffs.

29
1 form makes clear that the jury considered the claims of each Plaintiff individually

2 and awarded each Plaintiff a distinct amount ranging from $200,000 to Marialy

3 Morga’s mother Georgina Venegas for her loss of consortium claim to $61 million

4 for the wrongful death claim of the Estate of Ylairam Morga. Additionally, after the

5 jury returned its verdict the district court judge carefully polled the jury to ensure its

6 award was correct. Considering the disparity between the amount of suggested

7 punitive damages and the amount awarded, the clear explanation of the individual

8 amounts awarded to each Plaintiff on the jury’s special verdict forms, and the poll

9 of the jury confirming its award was for compensatory damages, we conclude that

10 Defendants have failed to carry their burden to show an unmistakable indication of

11 passion or prejudice, and we decline to infer passion or prejudice affected the verdict

12 based on Plaintiffs’ suggested punitive damage award. See Baker Hughes Oilfield

13 Operations, Inc., 2009-NMCA-095, ¶ 20 (requiring “an unmistakable indication of

14 passion or prejudice” to infer that passion or prejudice affected the verdict (internal

15 quotation marks and citation omitted)).

16 {44} Defendants next assert that the amount awarded shows prejudice and

17 sympathy because it is greater than what Plaintiffs’ counsel suggested for

18 compensatory damages. Defendants contend that Plaintiffs’ suggested metric for

19 valuing human life, $500 a day, calculated to about $12 million as Plaintiffs’

30
1 requested amount of damages for the Estate of Marialy Morga. The Court of Appeals

2 called this a “hypothetical suggestion” offered as “guidance to the jury” and not “a

3 specific amount of monetary damages” requested by Plaintiffs. Morga, 2018-

4 NMCA-039, ¶ 33. Even if Plaintiffs’ suggested valuation method was their requested

5 amount of damages, our case law is clear that this type of request does not place a

6 limit on the amount of damages a jury may award. See Nava v. City of Santa Fe,

7 2004-NMSC-039, ¶ 18, 136 N.M. 647, 103 P.3d 571 (explaining that a plaintiff’s

8 requested damages is not “a ceiling on a jury’s award”).

9 {45} Defendants concede that a plaintiff’s request of damages does not act as a

10 legal estoppel or place a cap on the jury’s award. However, Defendants assert that it

11 is “a relevant consideration” in determining whether passion or prejudice tainted the

12 verdict. Defendants rely on Nava, id., for the proposition that a jury’s award of

13 damages in an amount exceeding the sum requested by a plaintiff “indicates that

14 passion or prejudice affected the verdict.” Nava recognizes that the plaintiff is “in

15 the best position to evaluate the true extent of his or her damages” but also

16 acknowledges that “a plaintiff’s request for damages certainly does not create a

17 ceiling on a jury’s award.” Id. We do not find Nava particularly helpful, as it was a

18 sexual harassment case involving nonphysical injury to a single plaintiff; it did not

19 ask a jury to calculate noneconomic damages for multiple deaths and serious bodily

31
1 injury within a single family. See id. ¶ 2 (describing plaintiff’s allegations of sexual

2 harassment by supervisor and jury’s award of $285,000 in damages). While the Nava

3 Court held that the amount of the “award in th[at] case was so unrelated to the injury

4 and actual damages proven as to plainly manifest passion and prejudice rather than

5 reason or justice,” id. ¶ 20 (internal quotation marks and citation omitted), here it is

6 difficult to say the same in light of the deaths of Marialy and Ylairam Morga, the

7 serious injuries to Yahir Morga, and the impact the accident had on the lives of Yahir

8 and Alfredo Morga.

9 {46} In Rhein, this Court explained that a new trial may be granted “only when

10 there is evidence of jury tampering or other contamination of the process . . . or when

11 the weight of evidence is clearly and palpably contrary to the jury’s verdict.” 1996-

12 NMSC-066, ¶ 23. The fact that the jury awarded a greater amount than Plaintiffs

13 requested is a far cry from jury tampering or other contamination of the process.

14 Considering the special verdict forms indicating the jurors’ understanding of the

15 allocation of the award and considering the lack of any evidence of tampering with

16 the process, the fact that the jury chose to award more than what Plaintiffs may have

17 suggested is insufficient to infer passion or prejudice.

32
1 b. None of the three aspects of trial Defendants point to support their
2 claim that the verdict was affected by passion or prejudice

3 {47} Defendants also point to three aspects of the trial that they argue invoked

4 passion or prejudice in the jury. Defendants assert that the testimony of Alfredo

5 Morga, an unredacted photograph of the accident shown to the jury, and purportedly

6 improper statements made by Plaintiffs’ counsel during closing argument “inflamed

7 the jury and produced an excessive damages award.” Plaintiffs counter that

8 Defendants did not preserve these arguments. Assuming without deciding that the

9 arguments were preserved, we conclude that these three incidents, whether

10 considered on their own or cumulatively, are insufficient to show that the jury’s

11 award was the result of passion or prejudice.

12 i. The testimony of Alfredo Morga did not invoke passion or prejudice in
13 the jury that affected the verdict

14 {48} Defendants contend that Alfredo Morga’s emotional testimony—crying when

15 looking at photographs of his wife and daughter, discussing his bond with them and

16 the loss he felt—“even if an unavoidable aspect of the trial, would naturally have

17 affected any person with a sense of compassion.” A witness’s genuine emotional

18 testimony, alone, however, is insufficient to show passion or prejudice in the jury.

19 See Caldwell v. Ohio Power Co., 710 F. Supp. 194, 199-200 (N.D. Ohio 1989)

20 (noting that involuntary manifestation of emotion is not uncommon in personal

33
1 injury cases and holding that mother’s genuine emotional testimony was not

2 prejudicial). Generally,

3 [an] involuntary manifestation of seemingly genuine emotion by
4 weeping, crying, or similar conduct, during a civil trial, is not ground
5 for a mistrial, reversal, or new trial, in the absence of a resulting
6 prejudicial effect upon the jury, and the decision of the [district] court
7 denying a mistrial or new trial on such grounds will not be disturbed by
8 the appellate court in the absence of an abuse of discretion on the part
9 of the [district] judge.

10 L. S. Tellier, Manifestation of Emotion by Party During Civil Trial as Ground for

11 Mistrial, Reversal, or New Trial, 69 A.L.R.2d 954, § 3[a] (1960).

12 {49} The record does indicate that Alfredo Morga became tearful multiple times

13 during his testimony on direct examination including while looking at photographs

14 of his family, discussing their close relationship and their plans for a third child,

15 describing arriving at the scene of the accident, and learning his wife and daughter

16 had died and his son had been transported to a hospital in El Paso. The record also

17 reflects that the district court called for two breaks during this testimony and called

18 a bench conference to direct counsel to lead Alfredo Morga through testimony

19 concerning the accident scene to facilitate that examination.

20 {50} Defendants contend that after the second break, “Mr. Morga was so emotional

21 that he could not continue.” However, the record reflects that after the second break,

22 Alfredo Morga retook the stand, and while not devoid of emotion, he was able to

34
1 complete his testimony, including cross-examination and redirect, without further

2 incident.

3 {51} While the record indicates Alfredo Morga cried during his testimony, there is

4 no indication here, and Defendants point this Court to none, of a resulting prejudicial

5 impact on the jury. The record does not reflect that his testimony moved anyone else

6 in the courtroom to tears. Furthermore, the district court acted to curtail the

7 emotional testimony by calling for breaks and directing Plaintiffs’ counsel to lead

8 Alfredo Morga through his testimony. Importantly, there is no explanation of the

9 jury’s reaction to Alfredo Morga’s testimony from which we can conclude undue

10 emotion and sympathy affected its decision. Nothing in the record indicates that

11 Alfredo Morga’s testimony tainted the jury’s verdict with passion or prejudice. As

12 Defendants admit, this testimony was “honest,” “sincere,” and necessary. It is

13 difficult to imagine another way for Alfredo Morga to establish his damages outside

14 of offering his testimony as to how he was injured. Likewise, it is predictable and

15 reasonable that a person who lost his wife and young daughter and whose son

16 suffered critical injury all in one accident would be emotional. Alfredo Morga’s

17 testimony was the result of genuine emotional response, and nothing in the record

18 indicates any prejudicial reaction from the jury. The testimony appears to fall

19 squarely within the general rule that such genuine emotion is not grounds for a new

35
1 trial. See Tellier, 69 A.L.R.2d 954, § 3[a] (explaining that a display of genuine

2 emotion during a trial is not grounds for a new trial absent “a resulting prejudicial

3 effect upon the jury”).

4 {52} Defendants concede that there was nothing improper about Alfredo Morga’s

5 testimony and rather assert that it was just the emotional nature of his testimony that

6 invoked passion or prejudice in the jury. Defendants rely on Hanberry, 1963-

7 NMSC-100, ¶ 33, to support this proposition. Hanberry, however, is distinguishable.

8 The Hanberry Court did hold that properly admitted evidence may have “the

9 principal effect of unduly stressing the pain and suffering endured by the plaintiff.”

10 Id. However, the Court was referring to cumulative evidence, specifically pointing

11 to twenty-one photographs of the same injury and reasoning that “[s]uch over-

12 emphasis in proving relatively minor details could very possibly have resulted in

13 causing the jury to ignore the proper measure of damages.” Id. ¶¶ 12, 33. The

14 Hanberry Court did not address the impact of necessary emotional testimony, and

15 we note that Defendants cite no authority that this type of emotional testimony

16 entitles them to a new trial, so we assume none exists. See State v. Garnenez, 2015-

17 NMCA-022, ¶¶ 25-26, 344 P.3d 1054 (declining to find that an emotional outburst

18 by a member of the audience in the courtroom tainted the verdict where defendants

19 cited no authority that the emotional outburst required a mistrial); State v. Guerra,

36
1 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (providing that where no authority is cited

2 we may assume none exists).

3 {53} On the other hand, there is authority rejecting the argument that necessary

4 emotional testimony entitles Defendants to a new trial. Our Court of Appeals

5 rejected similar arguments made by the defendants in Maisel, 1968-NMCA-038, ¶

6 11. The Maisel defendants argued that passion and prejudice were “obvious”

7 because the plaintiff was divorced and disabled and cared for her disabled daughter.

8 Id. The Court reasoned that “[i]nstead of being ‘obvious,’ there is no indication that

9 these facts caused a verdict based on sympathy” and noted that “the jury was

10 specifically instructed (a) that sympathy for an injured person was not a proper basis

11 for determining damages and (b) that neither sympathy nor prejudice should

12 influence the jury’s verdict.” Id.

13 {54} Similarly here, the nature of the case does not make it obvious that passion or

14 prejudice affected the jury’s verdict. Furthermore, as in Maisel, the jury here was

15 specifically instructed with regard to each Plaintiff that it must not allow “sympathy

16 or prejudice” to influence its verdict. Each instruction delineated that “your verdict

17 must be based upon proof and not upon speculation, guess or conjecture.”

18 Concerning the Estates of Ylairam and Marialy Morga, the jury was instructed for

19 each that “[y]ou must not permit the amount of damages to be influenced by

37
1 sympathy or prejudice, or by the grief or sorrow of the family, or the loss of the

2 deceased’s society to family”; that “the property or wealth of the beneficiaries or of

3 . . . [D]efendant[s] is not a legitimate factor for your consideration”; and that “the

4 guide for you to follow in determining fair and just damages is the enlightened

5 conscience of impartial jurors acting under the sanctity of your oath to compensate

6 the beneficiaries with fairness to all parties to this action.” Defendants acknowledged

7 the significance of these instructions during closing argument, stating that the

8 “instruction is so important, it shows up seven times in the packet of instructions.

9 What it says is that sympathy cannot affect your decision in this case.” We assume

10 the jury followed these instructions. Baker Hughes Oilfield Operations, Inc., 2009-

11 NMCA-095, ¶ 59 (“[W]e presume jurors abide by the court’s instructions.”).

12 {55} Moreover, if this Court were to adopt Defendants’ suggested inference of

13 passion or prejudice, then in all wrongful death and personal injury claims in New

14 Mexico where a plaintiff exhibiting genuine emotion testifies as to the injury

15 suffered, passion or prejudice would always be inferred in the jury’s verdict.

16 Considering the ubiquity and frequently the necessity of this type of testimony,

17 adopting Defendants’ proposed inference here would create an unwanted, consistent

18 invasion of the province of the jury in New Mexico. Therefore, we decline to hold

19 that Alfredo Morga’s emotional testimony tainted the verdict.

38
1 ii. The unredacted photograph was not so graphic as to arouse the prejudice
2 or passion of the jury

3 {56} The district court entered an order excluding “any graphic photographs of the

4 bodies of Marialy Morga, Ylairam Morga, and Elizabeth Quintana.” During closing

5 arguments, Plaintiffs’ counsel displayed a photograph to the jury showing the

6 wreckage. The image is clearly of a badly wrecked vehicle. A severely damaged seat

7 and car door are identifiable. Upon close examination, some orange fabric and what

8 appears to be an arm from the shoulder to just below the elbow is visible between

9 the car door and seat. Several scratches and bruises are visible on the arm. The

10 district court ruled that Plaintiffs were permitted to use the photograph but that the

11 portion of the photograph showing the arm should be masked. The masking,

12 however, apparently fell off prior to the presentation of the photograph to the jury.

13 Defendants contend that the photograph likely invoked passion or prejudice and that

14 “[t]his graphic view of [Marialy’s] body in the mangled remains of her vehicle likely

15 colored the jury’s deliberations” and that we “should conclude . . . that Plaintiffs’

16 use of th[e] prohibited image . . . contributed to the passion and prejudice that

17 invalidate the jury’s verdict.”

18 {57} When Defendants first raised the matter on the last day of the trial following

19 the completion of Plaintiffs’ closing argument, the district court acknowledged that

20 the photograph should have been redacted and ordered that the photograph be

39
1 withheld from the jury for deliberations. At the same time, the district court judge

2 stated that she “seriously doubt[ed]” the jury would recognize the image in the

3 photograph as an arm and that she would not have recognized it as such had it not

4 been pointed out to her. Defendants acknowledge that the district court considered

5 the photograph harmless.

6 {58} We agree with the district court’s assessment. In reviewing the photograph at

7 issue, we see nothing obviously graphic about the image. The photograph focuses

8 on an extremely damaged vehicle and predominately depicts bent and mangled

9 metal, broken glass, a torn car seat, and damaged plastic from the interior of the

10 vehicle. The portion of the photograph showing the arm is small in comparison to

11 the rest of the photograph, and there is nothing gruesome about that section of the

12 photograph. While, upon close examination, some bruises and scrapes are visible,

13 the photograph does not show blood or other physical damage to the arm.

14 {59} “The [district] court ought to exclude photographs which are calculated to

15 arouse the prejudices and passions of the jury and which are not reasonably relevant

16 to the issues of the case.” State v. Boeglin, 1987-NMSC-002, ¶ 21, 105 N.M. 247,

17 731 P.2d 943. However, the photograph that is the subject of Defendants’ argument

18 is not so graphic as to fit into the category of photographs that should be excluded

19 as contemplated by this Court’s decision in Boeglin. Indeed, while Defendants cite

40
1 no case law supporting their claim that a photograph of the nature of the one at issue

2 invokes the jury’s passion or prejudice, we note that we have affirmed the

3 admissibility of photographs significantly more graphic than the photograph at issue

4 here. See State v. Galindo, 2018-NMSC-021, ¶ 39, 415 P.3d 494 (upholding the

5 district court’s admission of photographs of a deceased infant, notwithstanding that

6 they were “graphic, heartbreaking, and difficult to view”); State v. Saiz, 2008-

7 NMSC-048, ¶¶ 52, 54, 144 N.M. 663, 191 P.3d 521 (affirming the admission of

8 graphic photographs of the victim’s decomposed body), abrogated on other grounds

9 by State v. Belanger, 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783; State

10 v. Mora, 1997-NMSC-060, ¶¶ 54-55, 124 N.M. 346, 950 P.2d 789 (affirming

11 admission of autopsy photographs of a child victim), abrogated on other grounds by

12 State v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1. Because the

13 photograph here was not obviously graphic and the district court limited the jury’s

14 ability to review it, we conclude upon de novo review that the jury’s limited viewing

15 of the photograph is insufficient to infer that the jury’s verdict was the result of

16 passion or prejudice.

41
1 iii. Statements in closing argument were not so flagrant as to leave all
2 bounds of ethical conduct and any potential prejudice was rectified by
3 the jury instructions

4 {60} During closing argument, Plaintiffs’ counsel argued that Defendant FedEx

5 placed blame on its contractors and “took no responsibility, just like they haven’t in

6 this entire trial.” Defendants contend that Plaintiffs’ counsel’s statements in closing

7 arguments suggesting FedEx was trying to pass responsibility to its contractors were

8 “inaccurate and irrelevant.” These purportedly improper statements, Defendants

9 contend, prejudiced the jury such that a new trial is required. Defendants concede

10 that they “did not object to Plaintiffs’ improper argument” but contend that objection

11 was not necessary because the conduct of Plaintiffs’ counsel was egregious. See

12 Griego v. Conwell, 1950-NMSC-047, ¶ 17, 54 N.M. 287, 222 P.2d 606 (providing

13 an exception for unpreserved objections to conduct of opposing counsel where

14 counsel goes “outside the record, or . . . attempt[s] to inflame the minds of the jurors

15 against the opposing litigant”). We do not find Plaintiffs’ counsel’s statements

16 sufficiently egregious to infer that passion or prejudice affected the jury’s verdict

17 under the heightened standard of egregiousness set out in Griego.

18 {61} Defendants contend Plaintiffs’ argument was improper because Defendant

19 FedEx had agreed to accept responsibility collectively for all Defendants for all

20 damages awarded, including punitive damages. Plaintiffs respond that it was not

42
1 clear that Defendant FedEx agreed to accept liability, including punitive damages,

2 for all Defendants prior to trial because Defendants only support for this contention

3 occurred after trial began.

4 {62} Prior to trial, the district court did grant partial summary judgment for

5 Plaintiffs, finding that Defendant FedEx was liable for the actions of its

6 subcontractor driver, Elizabeth Quintana, under the statutory employee doctrine.

7 Although the record reflects some confusion around when Defendant FedEx

8 stipulated to its responsibility for all damages awarded against any Defendants,

9 including punitive damages, the record indicates that on the second day of trial

10 Defendant FedEx agreed to accept this responsibility. While it is not clear why

11 Plaintiffs brought this up again in closing, Defendants themselves brought this issue

12 up again after Plaintiffs rested, asking the district court to find no vicarious liability

13 for punitive damages:

14 THE COURT: I’m sorry, but Ms. Saiz already agreed. If punitive
15 damages are awarded, [FedEx] would be liable. You’re not getting out
16 of that one. You’re not going to be allowed to go back on it.

17 MR. CROASDELL: I was—I was referring to punitive damages for the
18 conduct—the alleged conduct of Elizabeth Quintana.

19 THE COURT: I don’t care who it’s of. She already agreed that—

20 MR. CROASDELL: I understand.

43
1 {63} Plaintiffs also point to the special verdict form that required the jury to allocate

2 fault to each Defendant. Defense counsel argued, “when you get to the Special

3 Verdict Form . . . you’re going to be asked to decide whether or not FedEx, [its

4 contractors], or Ms. Quintana was negligent in this collision.” Plaintiffs’ counsel in

5 rebuttal stated, “[p]ut it on the little guy. Do you think they have anything? No. ‘Put

6 it on them. It’s not our fault. It’s just our name, just looks like us.’ But that’s what

7 they’re used to, that’s been their whole strategy in this case.” Clearly, both parties

8 lacked certainty throughout the trial about the degree of liability Defendant FedEx

9 agreed to assume, and this uncertainty supports a conclusion that the statements

10 made by Plaintiffs’ counsel were neither inflammatory nor so egregious as to “leave

11 the bounds of ethical conduct.” Baker Hughes Oilfield Operations, Inc., 2009-

12 NMCA-095, ¶ 57 (internal quotation marks and citation omitted).

13 {64} Generally, absent objection at trial, we will not grant a new trial based on

14 improper statements of counsel “unless we are satisfied that the argument presented

15 to the jury was so flagrant and glaring in fault and wrongdoing as to leave the bounds

16 of ethical conduct, such as going outside the record.” Id. (internal quotation marks

17 and citation omitted).

18 {65} Here, the statements made, while unnecessary given the stipulation from

19 Defendants, were not “so flagrant and glaring” as to leave all bounds of ethical

44
1 conduct. Id. We conclude that the statements here were not inflammatory and that

2 any potential prejudicial effect the closing argument here may have had on the jury

3 was offset by the district court’s instruction to the jury that closing arguments of

4 counsel are not evidence. See UJI 13-2007 NMRA (providing that neither closing

5 arguments “nor any other remarks or arguments of the attorneys made during the

6 course of the trial are to be considered by you as evidence”); Baker Hughes Oilfield

7 Operations, Inc., 2009-NMCA-095, ¶ 59 (“[W]e presume jurors abide by the court’s

8 instructions.”). Therefore, we decline to hold that Plaintiffs’ closing argument

9 affected the verdict by inflaming the passion or prejudice of the jury.

10 iv. The cumulative impact of the three aspects of trial did not taint the jury’s
11 verdict

12 {66} In reviewing the cumulative effect of these three aspects of trial, we conclude

13 the effect is insufficient to infer that passion or prejudice tainted the jury’s verdict.

14 Before the district court, Defendants conceded, “[o]n the big picture, we can’t find

15 an error that would justify in its own terms a new trial.” The district court maintained

16 tight control of these proceedings. The district court limited evidence offered by

17 Plaintiffs, including certain hospital bills and portions of Alfredo and Yahir Morga’s

18 life plans. It also carefully controlled emotional testimony by removing from the

19 jury’s view photographs that provoked emotional responses from witnesses, taking

20 breaks during emotional testimony, instructing Plaintiffs’ counsel to lead Alfredo

45
1 Morga through his direct examination, and directing counsel to move on from

2 emotion-provoking testimony. The jury was repeatedly instructed not to allow

3 sympathy to play a part in the determination of its award, and we presume that a jury

4 follows the instructions given by the district court. Id. Indeed, the jury’s careful

5 allocation of fault to each Defendant, as well as its allocation of five percent fault to

6 Marialy Morga, after Plaintiffs’ closing argument urging the jury to allocate no fault

7 to her, indicates a deliberate, thoughtful, and even-keeled verdict.

8 {67} We conclude that the careful manner in which the district court judge

9 conducted the trial, in addition to the jury instructions, alleviated any cumulative

10 prejudicial impact of Alfredo Morga’s emotional testimony, the inadvertently

11 disclosed photograph, and Plaintiffs’ counsel’s statements about Defendants’ intent

12 to shift the blame. See United States v. Evans, 542 F.2d 805, 816 (10th Cir. 1976)

13 (refusing to conclude that three disruptive aspects of trial warranted mistrial when

14 “the [district] court did all that was possible to see that these outside matters did not

15 influence the jury”); Allsup’s Convenience Stores, Inc., 1999-NMSC-006, ¶ 16

16 (“The [district court] judge . . . is empowered to, with discretion, provide stability

17 and order during the proceedings.”); Chrysler Corp., 1998-NMCA-085, ¶ 16 (“[T]he

18 best way to arrive at a reasonable award of damages is for the [district court] judge

19 and the jury to work together, each diligently performing its respective duty to arrive

46
1 at a decision that is as fair as humanly possible under the facts and circumstances of

2 a given case.”); cf. Archuleta v. N.M. State Police, 1989-NMCA-012, ¶¶ 3-4, 108

3 N.M. 543, 775 P.2d 745 (finding that passion or prejudice tainted the jury’s

4 verdict⸻where a juror overheard that the judge tentatively granted the defendants’

5 motion for a directed verdict, after which the judge reconsidered allowing trial to

6 proceed, and the jury then ruled for the defendants⸻reasoning that the jury may

7 have found it futile to carefully consider the plaintiff’s case).

8 III. CONCLUSION

9 {68} Reviewing excessiveness of the verdict de novo, as we must, we conclude that

10 substantial evidence supported the verdict and that the jury’s award was not the result

11 of passion or prejudice. Therefore, it was not an abuse of discretion for the successor

12 judge to deny Defendants’ motion for a new trial. Where there is no error below, we

13 will not substitute our judgment for that of the jury. Lujan, 1967-NMSC-262, ¶¶ 25,

14 32. Accordingly, we affirm the Court of Appeals.

15 {69} IT IS SO ORDERED.

47
1
2 JULIE J. VARGAS, Justice

3 WE CONCUR:

4
5 C. SHANNON BACON, Chief Justice

6
7 DAVID K. THOMSON, Justice

8
9 ERIN B. O’CONNELL, Judge
10 Sitting by designation

48