{1} Plaintiff Tom Couch was seriously injured in the course of his employment when his foot was caught in a tail pulley on an asphalt recycling plant manufactured by Defendant Astee Industries, Inc. Plaintiff sued Defendant for strict product liability and negligence, and Plaintiffs wife sued for loss of consortium. The jury found Defendant liable, and, taking into account its assessment of comparative fault, awarded Plaintiff $1,050,000 in compensatory damages. Defendant appealed, and Plaintiff and his wife cross-appealed.
{2} In the main appeal, Defendant raises three primary issues. First, Defendant contends the trial court erred in admitting expert testimony on liability and hedonic damages, evidence of government standards, and evidence of post-accident remedial measures undertaken by Plaintiffs employer. Second, Defendant claims there was insufficient evidence from which the jury could reasonably determine that Defendant was responsible for Plaintiffs “enhanced injury” or that Defendant was negligent or strictly liable to Plaintiff. Third, Defendant argues the trial court erroneously instructed the jury that Defendant had a duty to retrofit the recycling plant. In the cross-appeal, Plaintiff and his wife argue that the trial court erred in granting Defendant’s motion for directed verdict for, respectively, punitive damages and loss of consortium. We affirm.
BACKGROUND
{3} Defendant manufactures asphalt plants and road paving equipment. Plaintiff was injured on August 18, 1997, while working for CalMat (Employer), which produces hot-mix asphalt used to pave highways and streets. At the time of the accident, Plaintiff
{4} On the day of the accident, Plaintiff loaded the recycle bin with a front-end loader, noticed that no RAP was on the feeder belt under the bin, and determined that the bin had jammed. In an attempt to unclog the bin and restart the RAP flow, Plaintiff climbed inside the bin and shoveled material out onto the ground. Plaintiffs action did not unclog the jam. Plaintiff then decided to re-enter the bin. The plant operator had shut off the feeder belt, but the incline conveyor belt continued to run. Instead of using a ladder to access the bin, Plaintiff climbed up on its frame and stepped on the guard attached to the conveyor belt frame. The guard was supposed to prevent contact with the conveyor belt and tail pulley.
{5} The parties disputed the guard’s role in the accident. Plaintiff argued that the guard was inadequate because it did not extend far enough past the nip point of the tail pulley and because it permitted a nine-inch gap between the belt and the conveyor frame. Plaintiff maintained that his foot was able to slip through the gap and come in contact with the conveyor belt which caused him to fall and ultimately resulted in his leg becoming entangled in the tail pulley. Conversely, Defendant argued that it was not the height of the guard or the gap that caused the accident, but instead either Plaintiffs negligence in failing to follow the proper procedures to unclog the recycle bin or Employer’s negligence in failing to adequately bolt the guard to the frame. Defendant contended that the improperly secured guard slipped and caused Plaintiffs foot to come in contact with the conveyor belt.
{6} After falling onto the conveyor belt, Plaintiff became entangled in the tail pulley mechanism, first by his foot, then his leg, and finally his thigh and groin area. A co-worker discovered Plaintiff holding onto the convey- or belt frame to keep from being pulled further into the tail pulley. Plaintiff sustained a fractured tibia and a ripping, degloving injury to his thigh.
{7} Plaintiff also argued that the asphalt plant should have been equipped with an emergency pull cord on the conveyor belt. A pull cord is a device that, if tripped, shuts down the power to the motors driving the conveyor belt within seconds. Plaintiff claimed that if there had been a pull cord on the conveyor belt, his fall would have tripped the cord, the belt would have stopped within seconds, and his injuries would not have been as extensive.
DISCUSSION
Defendant’s Appeal
Admission of Evidence
{8} Defendant argues that the trial court erred in admitting four specific types of evidence. We review the admission of evidence for abuse of discretion. Coates v. Wal-Mart Stores, Inc.,
Expert Testimony on Liability
{9} Defendant argues the trial court erred in admitting the testimony of Plaintiff’s safety expert, Vincent Gallagher, because he was not qualified to offer opinions on the design and engineering of the asphalt plant and because his testimony was unreliable. Rule 11-702 NMRA 2002 provides: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”
{10} We first address Gallagher’s qualifications. Gallagher has a master’s degree in occupational safety and health, and he presently works as a safety expert in the field of safety analysis — specifically, hazard identification, evaluation, and control. He has analyzed
{11} The trial court ruled that Gallagher would be permitted to explain how safety can be designed and built into a product. Specifically, the court allowed Gallagher to state opinions on Defendant’s design of the plant and the issue of retrofitting to add pull cords. The court accepted Gallagher “as an expert in the areas of princip[le]s and practices in hazard identification[,] ... guarding convey- or belts, ... and the princip[le]s and practices [of] product safety management.”
{12} Consistent with this directive, Gallagher’s testimony related to his safety expertise. Gallagher testified, based on a review of safety standards, discovery material, and deposition testimony, that Defendant failed to provide adequate guarding; failed to provide a safe means of access; failed to provide an emergency pull cord; failed to provide adequate safety instructions to Employer or its workers to safely perform unclogging; and failed to utilize a sufficient product safety management program consisting of written hazard analysis or appropriate warnings and instructions. Gallagher explained what goes into an appropriate product safety management program and how pull cords function to minimize hazards. Gallagher opined that Defendant’s lack of a -written product safety program and its failure to provide adequate guarding, safe access, and pull cords resulted in a defective product.
{13} Given Gallagher’s qualifications and testimony, we disagree with Defendant’s assertion that Gallagher’s testimony was speculative, subjective, and unreliable and that its probative value was outweighed by any prejudicial effect. Gallagher’s testimony was relevant and helpful to the fact finder. He is a safety expert, and the issues in this case concern whether the manufacturing plant built and sold by Defendant presented unreasonable safety hazards. Safety issues related to industrial plants are not matters within the average lay person’s repertoire. See Mott v. Sun Country Garden Prods., Inc.,
{14} Further, although Gallagher is not an engineer and has not personally designed conveyor belts, guards, or emergency pull cords, the trial court could reasonably conclude that his expertise in evaluating product designs and conveyor belts for safety hazards qualified him to offer opinions on these subjects. See Smith v. Ingersoll-Rand Co.,
{15} Based on the foregoing discussion, we hold that the trial court did not abuse its discretion in determining that Gallagher was qualified to testify as a safety expert and in admitting his testimony. See Shamalon Bird Farm, Ltd. v. U.S. Fid. & Guar. Co.,
Expert Testimony on Hedonic Damages
{16} Defendant argues the trial court erred in allowing Plaintiffs expert economist, Brian McDonald, to testify regarding hedonic damages. Defendant specifically contends that admission of the testimony was improper because the expert did not offer an opinion
{17} In New Mexico, “it is not improper for the trial court to permit an economist to testify regarding his or her opinion concerning the economic value of a plaintiffs loss of enjoyment of life.” Sena v. N.M. State Police,
{18} In the present ease, McDonald addressed various studies that have attempted to quantify the value of “a statistical life.” He testified that these studies posited a range of values from $500,000 to $11 million and that the average value of a whole life as gleaned from these studies was $3 million. He testified that this figure included the value of an entire life from cradle to grave and included earnings as well as intangible enjoyment. When asked to specify the percentage of a whole life that Plaintiff lost as a result of his injuries, McDonald declined and explained that the jury would determine the percentage.
{19} Defendant complains that McDonald’s refusal to specify a percentage or value for Plaintiffs loss of enjoyment of life rendered his testimony unhelpful to the jury, resulting in improper juror speculation. We disagree. McDonald’s testimony regarding statistical life studies gave the jury a range of monetary values that likely proved helpful in evaluating Plaintiffs claim. He also provided concrete guidance to the jury in determining a percentage of the monetary value that might reasonably compensate Plaintiff. For example, McDonald testified that people often derive enjoyment from their work above and beyond the amount they are compensated and from recreational activities. McDonald could not tell the jury how to evaluate these specifies; the jury would have to rely on other evidence, such as Plaintiffs testimony, to determine how Plaintiff derived the most enjoyment from his life and how his injuries affected that enjoyment.
{20} This determination is similar to the jury’s evaluation of pain and suffering. The law has entrusted the jury with the task of weighing the evidence of a plaintiffs pain pursuant to “the enlightened conscience of impartial jurors acting under the sanctity of [their] oath ... with fairness to all parties,” UJI 13-1807 NMRA 2002, and we see no difference in the process of evaluating the loss of enjoyment of life. To the contrary, if McDonald had complied with Defendant’s request and offered a specific value for Plaintiffs hedonic damages claim, he would have intruded improperly into the fact finder’s domain. See Smith,
Evidence of Government Regulations
{21} Defendant argues the trial court improperly admitted evidence of governmental regulations. Specifically, Defendant argues that the applicable governmental regulations, particularly standards of the Occupational Safety and Health Administration (OSHA), are directed toward employers rather than manufacturers. While we agree that this is an accurate statement, we are not persuaded that the admission of OSHA regulations was erroneous.
{22} New Mexico law holds that the standards expressed in OSHA regulations, as developed by appropriate expert or other testimony, may be admitted as objective safety standards and practices generally prevailing in the community on the issue of negligence. See Fabian v. E.W. Bliss Co.,
{23} Defendant broadly asserts “there was no proof that OSHA was used as an industry standard in 1988, the year that [Employer’s] conveyor belt was designed and manufactured.” Defendant’s assertion, however, includes no citation to authority or reference to how this particular argument was preserved below, and it does not specify the regulation or testimony to which it refers. See Pinnell v. Bd. of County Comm’rs,
{24} Finally, Defendant argues that the trial court improperly allowed Gallagher to testify regarding Defendant’s non-compliance with standards of the Mine Safety & Health Administration (MSHA). We disagree. The record indicates the trial court ruled that Plaintiffs expert could not refer to MSHA because those regulations relate to mining equipment.
Subsequent Remedial Measures
{25} Defendant argues the trial court erred in admitting evidence regarding post-accident remedial efforts by Employer. Defendant specifically objects to the admission of evidence that on the day following the accident, Employer added additional guards to eliminate the gaps between the guard and the conveyor belt frame and to completely enclose the tail pulley. The trial court permitted introduction of two photographs showing a portion of the new guard, as well as information that Employer was the source of the new guards. This issue relates to Rule 11-407 NMRA 2002:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.
{26} We are not persuaded by Defendant’s argument because the prohibition against admitting evidence of subsequent remedial measures does not apply to measures taken by non-defendants. Employer was not a party in this case and Rule 11-407, therefore, is not applicable. See Mehojah v. Drummond,
{27} We also reject Defendant’s argument that the prejudicial effect of the admitted evidence outweighed its probative value. See Rules 11-401 and 11-403 NMRA 2002. The evidence that Employer added the guard without a gap was highly relevant because it gave rise to an inference that the product was defective as manufactured, and that it was a gap between the guard and the belt— not a loose guard — that caused Plaintiffs foot to come into contact with the conveyor. The prejudice to Defendant was not unduly harsh. The trial court instructed the jury on the proper questions to consider, and Defendant failed to request a limiting instruction on the effect of the evidence. See Norwest Bank N.M. v. Chrysler Corp.,
Substantial Evidence Supported the Jury’s Verdict on Enhanced Injury and Product Liability
{28} Defendant argues the trial court erred in failing to rule as a matter of law that Plaintiff failed to prove enhanced injury, negligence, and strict liability. “A directed verdict is appropriate only when there are no true issues of fact to be presented to a jury.” Sunwest Bank v. Garrett,
Enhanced Injury
{29} Defendant argues the trial court erred in failing to rule as a matter of law that Plaintiff failed to prove an enhanced injury. Plaintiff claimed that he suffered enhanced injuries because the conveyor belt did not have emergency pull cords attached to the frame. Plaintiff argued that if there had been a pull cord on the conveyor belt, he would have tripped it, thereby stopping the conveyor and curtailing the extent of his injuries.
{30} In New Mexico, the enhanced injury doctrine, also called the “crashworthiness” doctrine, has been applied in actions against product manufacturers. Norwest Bank N.M.,
{31} As these cases demonstrate, generally the original tortfeasor and the tortfeasor who purportedly enhanced the injuries caused by the original tortfeasor are two different entities. Thus, in order to prove a case against the successive tortfeasor, a plaintiff must attempt to distinguish the enhanced injury from the original injury. Lewis v. Samson,
{32} Here, the enhanced injury claim arose in an unusual procedural context. Plaintiff claimed Defendant was liable for all of his injuries and made no distinction between original or enhanced injuries. In contrast, Defendant argued in a motion in limine that Plaintiff should not be allowed to argue that the absence of a pull cord led to his injuries unless he introduced evidence through a medical expert that its absence enhanced his injuries. The trial court denied
{33} However, when the trial court was reviewing the instructions to be given, Defendant argued that Plaintiffs claim regarding the absence of pull cords was really an enhanced injury claim. In other words, Defendant maintained that the absence of a pull cord served at worst to increase Plaintiffs exposure to the tail pulley, and had a pull cord been present, it would not have prevented Plaintiffs injury. Therefore, in Defendant’s view, Plaintiff had to bear the burden of distinguishing between the injuries he would have sustained if the plant had been equipped with pull cords and the injuries he sustained without the pull cords. Plaintiff objected, arguing that the injuries he sustained were the result of “a continuous series of events precipitated by the defendant’s defective product.”
{34} The trial court agreed with Defendant and instructed the jury accordingly. Plaintiff does not claim this as error in his cross-appeal, and we therefore do not address it. We assume, but do not decide, that Defendant’s status as both the alleged original tortfeasor and the “crashworthiness” tortfeasor does not preclude application of the enhanced injury doctrine. See Farrell v. John Deere Co.,
{35} To establish the elements of an enhanced injury, Plaintiff was required to prove (1) that the defective design caused injuries over and above those which otherwise would have been sustained, and (2) the degree of enhancement. The degree of enhancement may be established by proof of what injuries, if any, would have resulted had an alternative, safer design been used. Lewis,
{36} Regarding the first element, there was evidence that, although a pull cord would not have prevented Plaintiffs initial contact with the conveyor belt, once activated, it would have prevented him from further entangling his leg. Several witnesses testified that Plaintiffs entanglement lasted anywhere from thirty seconds to “a couple of minutes.” If a pull cord had been in place and if Plaintiff had tripped it, the cord would have automatically shut down the conveyor within seconds. Gallagher explained that if pull cords are designed properly, they act as a pressure-sensitive device that is automatically activated before the conveyor belt moves into the danger area — the tail pulley. Defendant’s vice president of engineering demonstrated where the pull cord would have been located on the recycle plant in question had it been equipped with one. Plaintiff and eyewitnesses testified about Plaintiffs location when he initially came in contact with the conveyor belt. Gallagher considered the foregoing testimony and opined that Plaintiffs foot would have tripped a pull cord before it landed on the conveyor. This in turn would have stopped the motor and caused the tail pulley to stop turning within about one second.
{37} Regarding the second element, Plaintiff testified that, after coming in contact with the conveyor belt, his foot first became entangled and eventually the conveyor belt moved his leg further into the tail pulley. Plaintiffs orthopedic surgeon testified that if the machine had been cut off approximately five seconds after Plaintiffs foot was caught, Plaintiffs injuries would have been restricted to the area below the knee.
{38} The foregoing evidence supports an inference that the longer Defendant’s leg was
{39} Based on the foregoing discussion, we hold that the jury reasonably could have found that Plaintiff proved his claim for enhanced injury due to the absence of a pull cord. We recognize that Defendant introduced evidence supporting a different outcome; however, “[t]he question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached.” Las Cruces Prof'l Fire Fighters v. City of Las Cruces,
{40} Defendant also argues that Plaintiff failed to prove the enhanced injury claim because he did not establish that a pull cord was a safer, feasible, alternative design. See Huddell,
Strict Liability and Negligence
{41} With respect to Plaintiffs claims for strict liability and negligence, Defendant contends that either Plaintiffs own negligence or Employer’s failure to secure the tail pulley guard to the conveyor frame caused the accident. As noted previously, the evidence was disputed as to whether Plaintiffs foot came in contact with the conveyor belt because of Employer’s failure to adequately secure the guard, because of an impermissible gap between the guard and the conveyor belt, or because of Plaintiffs own negligence.
{42} In order to hold Defendant strictly liable, the jury had to find that a condition of the recycling plant or the manner of its use caused an unreasonable risk of injury to “persons whom the supplier can reasonably expect to use the product.” UJI 13-1406 NMRA 2002. In order to conclude that Defendant was negligent, the jury had to find that Defendant failed to use ordinary care in designing or making the recycling plant. UJI 13-1410 NMRA 2002. Plaintiff presented evidence through Gallagher supporting the theory that the plant was unreasonably dangerous because the gap between the guard and the belt was large enough for a person’s foot to slip through and the convey- or belt was not equipped with pull cords. As discussed below in connection with Defendant’s post-sale duty, Plaintiff also presented evidence from which the jury could reasonably infer that Defendant knew or should have known about these purported defects.
{43} Although Defendant presented evidence supporting its countervailing theories, it was the jury’s prerogative as the fact finder to disbelieve Defendant’s view of what
The Trial Court Properly Instructed the Jury on Defendant’s Post-Sale Duty
{44} Defendant argues that the trial court erred in recognizing a duty to retrofit when it instructed the jury in accordance with UJI 13-1402 NMRA 2002:
The supplier’s duty to use ordinary care continues after the product has left [his][her][its] possession. A supplier who later learns, or in the exercise of ordinary care should know, of a risk of injury caused by a condition of the product or manner in which it could be used must then use ordinary care to avoid the risk.
While Defendant limits its argument to the duty to retrofit, Plaintiffs theory of Defendant’s post-sale obligations was more expansive. Plaintiff claimed that Defendant negligently failed to either (1) retrofit the conveyor belt with emergency pull cords after 1994 when Engineering Change Order 195 (ECO 195) went into effect, or (2) notify customers about ECO 195. We also emphasize that UJI 13-1402 does not describe a specific post-sale duty, such as a duty to retrofit. Rather, the instruction tells a jury only that a supplier who, after the sale of the product, knows or should know of any risks associated with the product, “must then use ordinary care to avoid the risk.” UJI 13-1402. Thus, it is for the jury to determine what steps — whether by warning or retrofitting or some other means — a supplier must take in the exercise of ordinary care.
{45} Defendant argues that the imposition of a post-sale duty is against public policy. We acknowledge that courts in other jurisdictions differ on the question of whether to recognize such a duty. See Lisa Anne Meyer, Annotation, Products Liability: Manufacturer’s Postsale Obligation to Modify, Repair, or Recall Product,
{46} Defendant has not directed us to any New Mexico law questioning the duty set forth in UJI 13-1402, and we have found none. Consequently, we consider this duty in the same light we would consider any other duty in negligence law. “The ultimate question is whether the law should give recognition and effect to an obligation from one person to another.” Gabaldon v. Erisa Mortgage Co.,
{47} The courts refusing to recognize post-sale duties generally do so because they believe such duties would inhibit manufacturers from developing innovative safety technology and improving their designs for fear of the expensive and onerous process required to find and warn all past purchasers of a product, or, even more costly, to retrofit the product. See, e.g., Douglas R. Richmond, “Expanding Products Liability: Manufacturers’ Post-Sale Duties to Warn, Retrofit and
{48} In the present case, the policy reasons relied on by these courts are inapplicable. Here, there is no question that the technology of pull cords existed and was in use at the time Defendant manufactured the plant in question. In fact, standards issued by the American National Standards Institute (ANSI) in 1988 and 1989 required that conveyors in remote locations be “furnished with emergency stop buttons, pull cords, limit switches or similar emergency stop devices.” A remote location was defined as “any location with respect to the conveyor from which the presence or position of personnel relative to the conveyor cannot be readily determined from the operator[’]s station.” Although Defendant argued that the conveyor on this plant was not in a remote location and that it chose not to equip the plant with pull cords at the time of manufacture because of a potentially greater risk of fire in the event of accidental tripping of the cords, the fact remains that pull cord technology was well established when Defendant sold this plant to Employer.
{49} Defendant argued at trial that the technology of the plant’s mixing mechanism changed after the sale of this plant and thus, it would be unreasonable to require Defendant to retroactively bring all its previously manufactured plants up to the later-develpped state of the art. Defendant’s vice president of engineering testified that Employer’s plant was a “parallel flow center recycle entry type plant” that could overheat and possibly cause a fire if the accidental tripping of a pull cord cut off power. Plants developed some years later were not subject to the same risk of overheating. It can be inferred from the verdict that the jury did not credit this testimony. Even assuming its accuracy, however, we are not persuaded that this development in technology militates against recognizing a post-sale duty. The critical technology here related to pull cords. ANSI standards required the installation of pull cords on certain conveyor-equipped machinery at the time this plant was manufactured, which establishes that pull cords were state of the art at the time.
{50} Moreover, the evidence established that the parties’ relationship extended past the point when Employer purchased the recycle plant from Defendant. Defendant sets up and tests each plant that it manufactures. In addition, Defendant was available by telephone or personal visit to assist Employer to relieve clogging in the recycle bin. Employer could contact Defendant’s service personnel twenty-four hours a day by phone to ask questions and set up service calls, and Defendant provided its customers with the opportunity to attend an annual school to discuss, among other things, safety issues. The record further indicates that Defendant’s principals try to have contact with at least five customers a day, sometimes traveling to
{51} In addition, Defendant’s president testified that Defendant has a policy of investigating accidents involving its equipment and remedying any safety issues discovered in the process. “[O]ur number one concern is to make sure if we’ve made a mistake, that we correct it and it’s not going to happen again.... [I]f we saw something that would be unsafe that we could guard by a design or guard by a guard or something, that would be done.” Because of these post-sale activities and policies, we believe Defendant could be found to have voluntarily undertaken the responsibility described in UJI 13-1402. See Restatement (Second) of Torts § 323 (explaining that one who undertakes to perform services may be subject to liability for the negligent performance of those services).
{52} Given Defendant’s voluntary undertaking of responsibility post-sale and the existence of pull cord technology at the time of manufacture, we conclude that UJI 13 1402 in the context of this case is a correct statement of the law. We do not address or decide whether a manufacturer has a post-sale duty to take steps to address risks that become evident only as a result of technological developments occurring after a product leaves the manufacturer’s control. The existence of a duty under those circumstances is not before us and is therefore left to another day.
{53} Defendant next argues that the evidence did not support the use of UJI 13-1402 because (1) Defendant established that there was no risk of injury associated with the plant because it complied with the ANSI standard regarding the use of pull cords, and (2) there was no evidence that Defendant learned after the sale of this plant that there was a defect in the plant. We disagree.
{54} First, although Defendant introduced evidence tending to show that workers around Employer’s conveyor were not in a remote location from the control house, and thus, that the ANSI standard requiring pull cords did not apply, Plaintiff introduced countervailing evidence that the men in the control house could not see Plaintiff when he was caught in the tail pulley. Consequently, it was the jury’s role as fact finder to determine this factual question. See Las Cruces Prof'l Fire Fighters,
{55} Second, the evidence gave rise to a reasonable inference that Defendant knew or should have known at some point after the sale to Employer that the absence of pull cords created a risk of injury. Plaintiff introduced evidence that Defendant issued ECO 195, which required all conveyors manufactured after 1995 to be equipped with a kill switch pull cable. At the time of manufacture, Employer knew that ANSI required pull cords on conveyors in remote locations, and there was evidence that the conveyor on Employer’s plant was in a remote location. Plaintiff introduced evidence regarding the close ties Defendant maintained with its customers and Defendant’s policy of investigating accidents and remedying safety problems. From all of this evidence, the jury could have reasonably inferred that Defendant knew or should have discovered some time before Plaintiffs accident that the absence of pull cords on conveyors created a risk of injury requiring remedial measures.
Plaintiffs Cross-Appeal
{56} Plaintiff argues the trial court improperly granted Defendant’s motions for directed verdict on the issue of punitive damages and the loss of consortium claim asserted by Plaintiffs wife, Emily Couch (Wife). The trial court granted Defendant’s motion for directed verdict on Wife’s loss of consortium claim at the close of Plaintiffs case. The trial court bifurcated the punitive damages claim and tried the claim separately to the jury following the main trial. At the close of the evidence in the punitive damages proceeding, the trial court directed a verdict in favor of Defendant.
Punitive Damages
{58} In asserting his claim for punitive damages, Plaintiff argued that Defendant’s conduct was reckless. See UJI131827 NMRA 2002 (stating that conduct that is “[malicious], [willful], [reckless], [wanton], [fraudulent] [or] [in bad faith]” provides the requisite mental state for an award of punitive damages). Recklessness in the context of punitive damages is “the intentional doing of an act with utter indifference to the consequences.” Torres v. El Paso Elec. Co.,
{59} Plaintiff primarily relied on Gallagher’s testimony to support his claim for punitive damages. Gallagher testified that Defendant (1) failed to follow a formal, written product safety program with information and instructions regarding how to systematically identify, evaluate, and control hazards; (2) failed to keep product safety management records or implement written design guidelines for its engineers; and (3) failed to implement a written recall or retrofit program to enhance product safety. Gallagher testified that other deficiencies included a nine-inch gap in the guard and the guard’s inadequate height, an inadequate way for workers to enter confined spaces, and lack of emergency pull cords.
{60} Plaintiff argues that Gallagher’s opinions regarding the foregoing deficiencies established Defendant’s conscious disregard for workers’ safety. We agree with the trial court that unsafe features in Defendant’s plant do not give rise to an inference that Defendant recklessly or consciously disregarded the workers’ safety. Plaintiff introduced no documentation or evidence, for example, to show that the safety problems arose from or reflected a reckless indifference, a culpable mind, actual malice, a conscious disregard for workers’ safety, or that Defendant simply disregarded applicable safety features. Cf. Gonzales v. Surgidev Corp.,
{61} To the contrary, Defendant introduced evidence that (1) it did have an integrated safety program that included
Loss of Consortium
{62} Plaintiff argues that the trial court improperly granted Defendant’s motion for directed verdict on Wife’s claim for loss of consortium. New Mexico case law recognizes a claim for loss of consortium, which is the emotional distress suffered by one spouse who loses the normal company of his or her mate when the mate is physically injured due to the tortious conduct of another. Romero v. Byers,
{63} Wife introduced sparse and very general evidence on her claim for loss of consortium. When asked how the accident changed her life, Wife responded “in every way imaginable ... the financial burden to the emotional stress, to our children, everything just is upside down. We haven’t had a moment’s peace since this occurred.” Dr. Arnet testified that Plaintiffs accident caused Wife and the children worry about Plaintiff and that Wife potentially has some secondary traumatization. However, other than a passing reference to Wife, Dr. Arnet’s testimony related primarily to Plaintiffs post-traumatic stress syndrome.
{64} We hold that the foregoing evidence was insufficient as a matter of law to permit the jury to consider a loss of consortium claim. The evidence provided the jury with no means for evaluating the claim. For example, Wife introduced no evidence comparing her marital relationship with Plaintiff before and after the accident. See, e.g., Newman v. Exxon Corp.,
CONCLUSION
{65} We affirm the issues raised both in Defendant’s main appeal and in Plaintiffs cross-appeal.
{66} IT IS SO ORDERED.