{1} In this toxic tort case, the district court granted Defendants’ motion to exclude the opinion testimony of Plaintiffs’ expert witness as to causation for the Plaintiffs’ lupus and autoimmune medical conditions. As a result, the district court granted partial summary judgment in favor of Defendants on Plaintiffs’ claims relating to their lupus and other autoimmune disorders. Plaintiffs’ remaining claims that relied upon other evidence and expert testimony survived summary judgment and were allowed to proceed to trial. After the jury returned a verdict in favor of Defendants on Plaintiffs’ remaining claims, Plaintiffs filed a motion for new trial based on juror misconduct and juror bias. The district court denied the motion for a new trial and entered a final judgment in favor of Defendants. This appeal followed. We affirm.
BACKGROUND
{2} This is an action brought by over 200 individuals asserting either personal injury claims, property damage claims, or both, against Shell Western Exploration and Production, Inc. and Shell Oil Company, (collectively, Shell). Plaintiffs allege that Shell purposely or negligently deposited and left various toxic petrochemicals in the ground where the Westgate neighborhood (Westgate) is presently located in Hobbs, New Mexico. The nine named Plaintiffs in this case were selected for an initial trial. Plaintiffs asserted claims for negligence, strict liability, nuisance, and trespass.
{3} Plaintiffs resided in Westgate at varying times and for varying lengths of time over more than twenty years. Westgate is situated within an active oilfield. Oil and gas operations had been conducted in the area known as the Grimes lease since the 1920’s, and development of the area for housing began in the 1970’s. From 1946 to 1993, Shell maintained a tank battery on the Grimes lease and used the tank battery to store crude oil and saltwater produced from wells on the lease. Just east of the tank battery, Shell used an unlined storage pit (the Tasker pit) to dispose of oilfield waste. The Grimes battery was dismantled and removed after it was decommissioned. In 1997, the soil where the battery tanks previously stood was found to be contaminated with hydrocarbons. In addition to the soil contamination, hydrocarbon contamination was found in the water table.
DISCUSSION
{5} This was a complex toxic tort case that involved an extraordinary volume of briefs, affidavits, expert witness reports, case studies, and scientific information. The scientific aspects of this case were critical to this litigation and were addressed at several stages during the pretrial process. This pretrial analysis required the district court to devote an extensive amount of time and attention to complex scientific evidence, including numerous research studies addressing potentially toxic chemicals. The district court did an admirable job controlling and managing the numerous scientific aspects of the case before trial was convened. These efforts resulted in several dispositive rulings prior to trial. In their first argument on appeal, Plaintiffs make two challenges: first to the district court’s pretrial rulings excluding Dr. Dahlgren’s causation opinions as well as his epidemiological study on lupus and other immune conditions, and second to the resulting grant of summary judgment on these claims. We begin with the first argument. We will also address Plaintiffs’ second argument regarding alleged jury misconduct. The additional facts and procedural history pertinent to each argument will be included in the appropriate discussion below.
I. The Partial Grant of Summary Judgment
{6} The initial issue on appeal is whether Shell was entitled to partial summary judgment on Plaintiffs’ claims relating to lupus and other autoimmune disorders. In deciding this question, we must determine whether the district court abused its discretion when it excluded Dr. Dahlgren’s expert opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
{7} Plaintiffs alleged that their exposure to contamination from the Tasker pit either caused or aggravated their lupus and other autoimmune medical conditions, as well as their respiratory, neurological, and psychiatric injuries. Plaintiffs sought to have Dr. Dahlgren testify as their expert witness regarding causation. Plaintiffs could not establish a prima facie case regarding claims that involved lupus and other autoimmune medical conditions without Dr. Dahlgren’s testimony. Of particular import to Plaintiffs’ appeal, Dr. Dahlgren was prepared to testify that, to a reasonable degree of medical probability, the various autoimmune conditions Plaintiffs suffered, including lupus, were caused by Plaintiffs’ exposure to a mixture of three specific chemicals found in crude oil: pristane, benzene, and mercury. Dr. Dahlgren based his opinion, in part, on a cross-sectional epidemiologic study that he performed.
{8} In Dr. Dahlgren’s study, he relied on blood pristane data taken from the plaintiff group and a review of their medical records. He compared the plaintiff group data with similar data he collected from an unexposed group of California residents. The district court excluded this blood pristane data as scientifically unreliable. The district court also excluded, as scientifically unreliable, Dr. Dahlgren’s calculated “minimum risk” levels for hydrogen sulfide and benzene and related cumulative exposure estimates. These early rulings were important to the nature of Plaintiffs’ chemical mixture theory for its lupus and other autoimmune disorder claims and laid the foundation for subsequent summary judgment rulings by the district court. On appeal, Plaintiffs do not challenge the early rulings regarding the blood pristane data and minimum risk level estimates related to cumulative exposure.
{9} Shortly before trial commenced, Shell filed numerous motions in limine and motions for summary judgment regarding all of Plaintiffs’ injury claims against Shell. Shell challenged the Plaintiffs’ expert witness testimony
{10} The scientific studies relied upon by Plaintiffs to establish their claims for respiratory, neurological and psychiatric injuries did not include Dr. Dahlgren’s own epidemiologic study. These injuries relied upon a plethora of other scientific evidence and studies involving exposure to petrochemicals generally, as well as exposure to specific chemicals and component elements found in crude oil. In its summary judgment pleadings, Shell argued that the district court should apply the stringent federal standard that has recently developed for determining whether expert testimony will be admitted to establish causation. See Kumho Tire Co., Ltd. v. Carmichael,
{11} Plaintiffs responded with various exhibits and rebuttal affidavits that primarily addressed the methodology of Dr. Dahlgren’s epidemiologic study. In his rebuttal affidavit, Dr. Dahlgren provided detailed responses to rebut Shell’s assertions that his causation testimony was unreliable and that the methodology used in his epidemiologic study was flawed. He also asserted for the first time thathe had mislabeled his epidemiologic study as cross-sectional and that the study did not suffer from the usual causal limitations of a cross-sectional analysis. Dr. Dahlgren asserted that his study was more appropriately labeled as a case-control study or a retrospective cohort study. Plaintiffs argued that Dr. Dahlgren’s testimony should be admissible under our case law for expert testimony that has developed under Alberico and considered less stringent than recent federal precedent. See Lee v. Martinez,
{12} The district court initially announced its ruling on the motions in limine and motions for summary judgment by letter. The court found that issues concerning the reliability of Dr. Dahlgren’s methodology in designing and conducting his study would primarily go to weight and not to the admissibility of the study. As a result, the methodology utilized in Dr. Dahlgren’s study was not the basis for granting summary judgment. Using the Alberico standard to analyze the scientific evidence, the district court focused on whether there
{13} To determine whether the district court’s summary judgment decision was proper we shall address: (A) proof of causation in a toxic tort case, (B) Rule 11-702 NMRA and the application of Daubert/Alberico under New Mexico law, (C) our standard of review of a district court order excluding expert witness testimony under Daubert/Alberico, and (D) the district court orders excluding Dr. Dahlgren’s expert opinions regarding the specific chemical mixture theory as it relates to lupus and other autoimmune disorders.
A. Proof of Causation in a Toxic Tort Case
{14} To establish causation in a toxic tort case, expert testimony is required to show both “general causation” and “specific causation.” Andrews v. U.S. Steel Corp.,
{15} In this case, general causation involves whether and at what level the specific petrochemical mixture at issue — pristane, benzene, and mercury — is capable of causing lupus and the varied autoimmune disorders. Specific causation involves whether the petrochemical mixture did in fact cause the varied autoimmune disorders suffered by Plaintiffs.
B. Rule 11-702 and the Application of Daubert/Alberico
{16} In Alberico, the New Mexico Supreme Court adopted an approach, similar to that established by the United States Supreme Court in Daubert, clarifying that Rule 11-702 requires three prerequisites for admission
{17} Where essential elements of Plaintiffs’ case are entirely dependent upon expert testimony, the trial judge has a duty to “ensure that an expert’s testimony rests on both a reliable foundation and is relevant to the task at hand so that speculative and unfounded opinions do not reach the jury.” Parkhill v. Alderman-Cave Milling & Grain Co. of N.M.,
{18} To be relevant, expert testimony should help the trier of fact understand the evidence or help determine a disputed issue in the case. See, e.g., Zia Trust, Inc. v. Aragon,
C. Standard of Review
{19} The determination of the relevance and reliability, and thus admissibility, of scientific testimony “lies in the discretion of the district court.” Zia Trust,
D. Dr. Dahlgren’s Expert Opinion
{20} The opinion testimony from Dr. Dahlgren was proffered by Plaintiffs to establish that at certain measurable levels a mixture of pristane, benzene, and mercury, three specific chemicals found in crude oil, is capable of causing or contributing to lupus and other autoimmune disorders. In fulfilling its function to analyze the scientific evidence, the district court specifically chose not to address whether Dr. Dahlgren’s methodology was reliable. Instead, the court excluded Dr. Dahlgren’s
{21} Plaintiffs argue on appeal that the district court abused its discretion in excluding Dr. Dahlgren’s testimony because the basis for exclusion went to the weight of his testimony, not its admissibility. We disagree. The district court found that the underlying scientific data was insufficient to establish the necessary causal nexus between the specific chemical mixture and lupus or other autoimmune disorders. Dr. Dahlgren relied on his own epidemiologic study and a variety of other animal and human studies to form his opinion as to general causation. We shall address the relevance of each foundational basis of Dr. Dahlgren’s opinion.
1. Dr. Dahlgren’s Own Study
{22} Dr. Dahlgren based his general causation opinion in part on his own epidemiologic study. In performing his study, Dr. Dahlgren collected data from the plaintiff group through questionnaires and blood samples. He collected similar data from an unexposed group of California residents. He compiled the data and labeled his compilation as a community comparison cross-sectional study. The study concluded that there was a higher prevalence of a number of conditions, from respiratory complaints to lupus, in the exposed group. As a result, the study opined that environmental toxins, specifically pristane and mercury, may induce lupus. The study also specified that “[fjurther research is needed to determine the mechanism of effect for each of the suspected causal exposures and to assess possible synergy between exposures.” As a result, Dr. Dahlgren’s study was not designed to determine whether and at what levels the petrochemical mixture of pristane, benzene, and mercury would cause lupus or autoimmune disorders. It simply compared the differences in the reported incidence of certain medical ailments between two geographically specific community groups.
{23} Plaintiffs argue that Dr. Dahlgren’s methodology was a reliable basis to determine general causation and the district court abused its discretion by excluding the study. But the district court did not exclude the study solely because it was labeled as a “cross-sectional study},]” as Plaintiffs’ claim. Rather, our review of the record reveals that the district court excluded the study because, regardless of the reliability of the study’s underlying methodology, Dr. Dahlgren’s study itself fails to establish the necessary nexus between the underlying data and Dr. Dahlgren’s opinions regarding causation. The district court explained that the study “does not fit” any disputed issue in the case because the data in the study “may not even show an association and it certainly fails to bridge the gap from association to causation.” As such, we need not address Plaintiffs’ numerous arguments regarding the reliability of Dr. Dahlgren’s underlying methodology. Instead we must look at whether the determination of a potential association made by Dr. Dahlgren’s study is appropriate to establish the necessary scientific link to his causation conclusion.
{24} Plaintiffs argue that this approach improperly focuses on Dr. Dahlgren’s conclusions. See Torres,
{25} While it is true that epidemiologic studies are generally used as proof of causation, not all epidemiologic studies can establish causation. See Joiner,
{26} Finally, it is significant that at the time the district court was evaluating the study’s relevance, Plaintiffs argued that the “epidemiologic}] study was not intended to prove causation but was conducted to merely compare the health status of two different populations.” Without a more concrete basis to support the causal link between the specific chemical mixture and these health conditions, Dr. Dahlgren’s study is only relevant to show a generally higher incidence of certain medical disorders in two community groups but is insufficient to establish a general causation link to lupus and other autoimmune disorders. See State v. Downey,
2. Totality of Dr. Dahlgren’s Evidentiary Basis for His Causation Conclusion
{27} Although the district court found that Dr. Dahlgren’s study, standing alone, was not sufficient to establish general causation, it explained that the study might still be helpful to the jury’s determination. The district court explained that the study might be still be relevant if the totality of the other scientific evidence bridges the analytical gap from association to causation for lupus and autoimmune disorders. See Joiner v. Gen. Elec. Co.,
{28} Dr. Dahlgren had based his general causation opinion on additional animal studies involving various species. The district court specifically addressed a mouse study that involved injecting mice with a high dose
{29} The district court previously excluded, as unreliable, the blood pristane analysis of the Westgate population prepared by Dr. Dahlgren for his epidemiologic study. Aside from the problems relating to the dosage in the animal study that involved pristane being injected directly into the bloodstream of mice, the study was irrelevant to the facts of this case without any evidence of the level of pristane in the exposed population’s bloodstream. See Valentine v. PPG Indus., Inc.,
{30} Plaintiffs’ argument that the district court improperly rejected Dr. Dahlgren’s reliance on mouse studies based solely on a general apprehension about inter-species and inter-dosage extrapolation, see Metabolife Int’l, Inc. v. Wornick,
{31} The record reflects that the district court also reviewed and considered the human studies relied on by Dr. Dahlgren to form his causation opinion. The additional human studies relied on by Dr. Dahlgren discussed the individual immunological, neurological or respiratory effects of pristane, benzene or mercury. Significantly, none of these studies dealt with the specific mixture relied upon by Dr. Dahlgren or the medical disorders at issue in this case. Plaintiffs provided no information as to how and why the different exposures translated to the
{32} Plaintiffs could not articulate any study, other than Dr. Dahlgren’s own study of the Westgate population, that would support the opinion that the petrochemical mixture caused the lupus and other autoimmune disorders identified in this case. Dr. Dahlgren himself explained that the most factually similar study he relied upon involved a lupus cluster near a hazardous waste site in Georgia, but that the study never identified the chemicals present at the waste site. While the non-existence of good data is not fatal to a claim, the fact that there is no other available data does not loosen the requirements that expert witnesses need base their conclusions on adequate scientific evidence and not conjecture. See Parkhill,
{33} There must be a link between the factual data used by an expert and the conclusion the expert offers. Here, the record reflects that the district court thoroughly reviewed the various studies, both human and animal, that Dr. Dahlgren relied upon to form his opinion regarding causation. We conclude that the district court did not abuse its discretion when it determined that Dr. Dahlgren could not base his general causation opinions on his cross-sectional study or the other cited human and animal studies. For the foregoing reasons, we affirm the district court’s grant of partial summary judgment in favor of Defendants.
II. The Motion for New Trial
{34} After the jury was selected and sworn, the court instructed the jury pursuant to UJI13-110 NMRA. Since March 1, 2005, the instruction has allowed jurors to discuss the evidence among themselves throughout the trial, including witnesses, testimony, and exhibits, but only in the jury room when all of the jurors are present. It further cautions jurors to keep an open and impartial mind, to not prejudge the case, and to not attempt to sway other jurors about the outcome of the case before commencing final deliberations. Throughout the course of the seventeen day trial, the district court rep eatedly reminded the jurors about these concepts. The jury deliberated a little over one and a half hours before announcing its verdict. In its verdict, the jury found against Plaintiffs on all claims.
{35} After the verdict was announced, Plaintiffs declined to have the jury polled. Plaintiffs later moved for a new trial based on the affidavit of an alternate juror who did not participate in the final deliberations. The record was also supplemented with affidavits from three jurors who were involved in deliberations.
{36} Plaintiffs assert that the district court abused its discretion by denying their motion for a new trial as to all Plaintiffs. Plaintiffs base this motion on affidavits submitted by the three jurors and the one alternate juror. Plaintiffs do not argue on appeal that extraneous information reached the jury. Before the district court could reach the merits of Plaintiffs’ misconduct claims, it had to first
A. Standard of Review
{37} The denial of a motion for new trial based on jury misconduct is reviewed under the abuse of discretion standard. State v. Mann,
B. Admissibility of the Juror Affidavits under Rule 11-606(B)
{38} Our initial inquiry is whether the juror affidavits are admissible under Rule 11-606(B). With limited exceptions, New Mexico has long adhered to the rule that juror testimony is inadmissible when offered to impeach the jury’s verdict. See Goldenberg v. Law,
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing . . . the verdict.... A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
{39} We have previously explained that the purpose of Rule 11-606(B) is to protect the sanctity of jury deliberations. See State v. Ramming,
{40} On appeal, Plaintiffs assert only juror bias and prejudgment during trial. As a result, the juror affidavits, which describe statements made during the course of trial, are inadmissible under Rule 11-606(B) if they implicate the jury’s deliberative process. Plaintiffs argue that Rule 11 -606(B) does not preclude consideration of the affidavits due to this Court’s holding in Goodloe v. Bookout,
{41} In 2005, after this Court decided Goodloe, our New Mexico Supreme Court promulgated UJI 13-110, one of the preliminary jury instructions used in this case. UJI 13-110 permits the jury to discuss evidence amongst themselves during trial and states, in relevant part:
[Y]ou may discuss the evidence during the trial, but only among yourselves and only in the jury room when all of you are present. . . . The kinds of things you may discuss include the witnesses, their testimony, and exhibits. Be careful, however, not to make up your minds or try to convince others about the final outcome of the case until you have heard everything — all the evidence, the final instructions of law, and the attorneys’ closing arguments. It would be unfair to the parties if you attempt to decide the outcome of the case before you begin final deliberations.
Thus, because UJI 13-110 now permits juries to discuss the evidence among themselves during trial, we must first determine the continued vitality of our holding in Goodloe.
C. Discussions Authorized by UJI 13-110
{42} The admissibility of the juror affidavits in this case depends on whether juror discussions of evidence throughout trial and amongst themselves, as permitted by UJI 13-110, are shielded from public disclosure by Rule 11 -606(B). Plaintiffs contend that the promulgation of UJI 13-110 did not alter the scope or meaning of Rule 11-606(B) and the Goodloe exception to the rule still applies. In response, Shell argues thatUJI 13-110permits the jury to deliberate throughout the trial and, therefore, the Rule 11 -606(B) shield over the workings of the jury’s deliberative process extends to the deliberations authorized under UJI 13-110.
{43} “We apply the same rules of construction to procedural rules adopted by the Supreme Court as we do to statutes.” State v. Miller,
{44} The plain language of Rule 11-606(B) indicates that the determinative characteristic of the protection set forth in the rule is not when during a trial the discussion occurs, but whether the discussion is, by its nature, part of the jury’s discussion and analysis of the evidence in the case. This conclusion is bolstered by the Supreme Court’s recent adoption of UJI 13-110 which permits the jury to weigh the evidence presented to them at trial and anticipates that the jury will form preliminary opinions on the evidence. We conclude that the Supreme Court promulgated UJI 13-110 with the intent to permit the jury to engage in a limited form of protected deliberation throughout the course of trial. This conclusion is consistent with the dictionary definition for “deliberation.” Webster’s Third New International Dictionary 1191 (Unabridged 1993) (defining “deliberation” as “the act of weighing and examining the reasons for and against a choice or measure”); see also Battishill v.
{45} We conclude that the promulgation of UJI 13-110 specifically changed the prohibition for pre-deliberation discussions that this Court outlined in Goodloe. Our conclusion is consistent with the purpose of Rule 11-606(B): to cloak the mental processes of the jury in reaching its verdict. To conclude otherwise, that Rule 11 -606(B) would only shield final deliberations from disclosure, would thwart the purposes of both Rule 11-606(B) and UJI 13-110. Allowing jurors to discuss their opinions on the witnesses, the testimony, and the exhibits, but not protecting those discussions from public disclosure under Rule 11-606(B), would dissuade jurors from engaging in exactly the type of evidentiary discussions during trial that UJI 13-110 was adopted to permit. Moreover, the sanctity of these preliminary jury discussions would become vulnerable to public exposure if only final deliberations were protected. See State v. Jojola,
C. Admissibility of the Juror Affidavits in This Case
{46} Having determined that discussions of the evidence prior to final deliberations are protected from disclosure by Rule 11-606(B), we must next determine the application of the rule to the affidavits in this case. The juror affidavits present the following as instances of juror misconduct: (1) statements that some of Plaintiffs’ symptoms were the result of medication side effects; (2) a statement that one of the Plaintiffs was ill with something other than contamination; (3) a statement that asthma and bronchitis could only be diagnosed by a chest x-ray, contrary to Plaintiffs’ medical expert; (4) a statement that the Department of Health went to the neighborhood because of tuberculosis; (5) comments regarding the sexual orientation and morals of two of the plaintiffs; (6) a statement that oil companies would “pull out” in the event of a pro-plaintiff verdict; and (7) comments during breaks in the trial that the
{47} The jury here was instructed that it was proper to discuss the evidence among themselves during trial, and, as the district court recognized, most of the reported remarks are permissible comments on the evidence presented to the jury. Statements one through four, for example, are all remarks on the evidence elicited at trial and are clearly permissible jury evaluations of the strengths and weaknesses of the trial evidence. See State v. Chamberlain, 112 N.M.723, 732,
{48} Additionally, while statements five and six are not necessarily relevant evaluations of the evidence, the comments do derive from testimony presented throughout the trial. The statement regarding the morals of one Plaintiff, for example, was based on her testimony that she had a child out of wedlock. Similarly, the comment regarding another Plaintiffs’ sexual orientation could have referred to his testimony that after his divorce, a male moved into his home. The district court correctly noted that these comments were insensitive and irrelevant but held that they were nonetheless permissible comments regarding the witnesses and the testimonial evidence received. See UJI 13-110. The district court analyzed whether these comments indicated juror bias and ultimately concluded that the jury found against all nine Plaintiffs as to liability and, therefore, the district court could not find that statements regarding only two Plaintiffs had a prejudicial impact on juror deliberations. Additionally, the district court explained that Plaintiffs failed to present any evidence that these comments actually imputed bias to the jurors who uttered them or that the comments imputed bias to the rest of the jury.
{49} Next, the district court found no evidence that discussing the effect a verdict against Shell might have on Shell’s continued activity in Hobbs entered into the juror’s deliberations or prejudiced Plaintiffs in any way. Similarly, this was also a permissible discussion on the evidence presented at trial. Plaintiffs themselves discussed the possible effect of a verdict for Plaintiffs on the oil and gas industry in closing argument, and the district court acknowledge that “whether subtly or directly the parties argued the general effect a verdict would have.” The affidavits support an inference that statements one through six were made during jury discussions of the evidence occurring throughout trial and thus the district court improperly considered them. Although the district court erred in considering these portions of juror affidavits under Rule 11-606(B), it properly denied Plaintiffs’ motion for new trial with regard to these statements.
{50} The seventh assertion regarding juror statements that the trial was a “waste of . . . time” may fall outside the shield provided by Rule 11 -606(B). As such, if the statements could be considered evidence of fixed predeterminations of the final outcome in the case, then it would be proper for this Court to evaluate the statements. This is because the statements may reflect a violation of the preliminary deliberation instruction under UJI 13-110 and the recognition that one biased juror can destroy “[t]he integrity of a jury.” State v. Chavez,
{51} Plaintiffs assert that a juror’s statements throughout trial “clearly communicated that [the juror’s] views would not be altered by anything that occurred at trial.” After reviewing the juror affidavits relied on by Plaintiffs, the district court looked at the totality of the circumstances and the trial conduct of the allegedly biased jurors, and ultimately concluded that the Plaintiffs’ allegations of jury pre-determination was not supported by the evidence. This conclusion is supported by the record.
{52} The juror affidavits merely assertthat within the first three days of trial a juror stated, “Why are we here? This is a waste of our time[,]” and that “we know what the outcome is.” The juror affidavits also assert that, at some point during the trial, the same juror complained that she was tired of hearing the same evidence and just wanted to go home. However, these statements alone are vague and are insufficient to meet Plaintiffs’ burden of proof to present evidence that the juror’s opinion was immutably fixed. See United States v. Caldwell,
{53} On the contrary, to support their argument that these statements reflect a jury member’s immutable opinion, Plaintiffs point to permissible discussions of the evidence presented by the parties at trial. But, along with UJI 13-110, the court instructed the jury that they should not hesitate to re-examine their views and change their opinions after consulting with one another and throughout the course of their deliberations. Unlike in Go odio e, the jury instructions in this case allowed the jury to form preliminary opinions about the evidence and to discuss those opinions throughout the course of trial. Therefore, a jury member’s expression of a preliminary opinion as to liability did not alone violate the district court’s instructions. Without any additional basis to establish that any juror’s opinion was immutably fixed or that the comments were not based on a preliminary view of the trial evidence, we cannot conclude that the district court abused its discretion in rejecting the Plaintiffs’ arguments that they were denied the right to a fair trial based upon the juror affidavits submitted for review.
{54} After reviewing the district court’s decisions, we conclude that the district court erroneously reviewed and considered all but one portion of the juror affidavits. Based on our review of the admissible portion of the affidavits addressing the possibility of a juror’s comments that could be considered a predetermination of the final outcome of the case, we affirm the district court’s denial of Defendant’s motion for a new trial on that basis as well.
{55} W e note that Plaintiffs’ brief in chief factually alleged that some of the allegedly improper discussions of the evidence occurred in small groups outside the presence of all jury members. This allegation arises from the affidavit of the alternate juror who stated that “[djiscussions would take place when other jurors were out of the jury room.” Plaintiffs, however, did nothing to develop how or whether these discussions involved deliberations, evidence, witnesses, testimony or exhibits. Moreover, Plaintiffs did not address or distinguish this argument from their general bias argument or specify the matters discussed outside the presence of the entire jury. Plaintiffs did not argue that comments made in small groups were in violation of UJI 13-110 rather than permitted discussions of topics such as the weather, sports, family, work, or a host of other unrelated topics that did not involve actual deliberation of the case. As a result, we will not address this issue further. See State v. Ortiz,
CONCLUSION
{56} For the foregoing reasons, we affirm the judgment of the district court.
{57} IT IS SO ORDERED.
WE CONCUR: