ALFREDO MORGA, Individually and on behalf of the Estate of YLAIRAM MORGA, Deceased; and as Next Friend of YAHIR MORGA, Minor Child, and RENE VENEGAS LOPEZ, Individually and as the Administrator of the Estate of MARIALY RUBY VENEGAS MORGA Deceased; and GEORGINA LETICIA VENEGAS, Individually, Plaintiffs-Appellees, v. FEDEX GROUND PACKAGE SYSTEM, INC., RUBEN‘S TRUCKING, LLC a/k/a RUBEN REYES a/k/a SHOOTER‘S EXPRESS TRUCKING, INC., the Estate of ELIZABETH SENA QUINTANA, and M&K‘S TRUCKING, INC., Defendants-Appellants.
NO. A-1-CA-35001
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
February 6, 2018
Francis J. Mathew, District Judge
L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM
for Appellee the Estate of Ylairam Morga
Scherr & Legate, PLLC
James F. Scherr
El Paso, TX
for Appellee Alfredo Morga
Cervantes Law Firm, P.C.
K. Joseph Cervantes
Las Cruces, NM
for Appellee Yahir Morga
Daniel Anchondo
El Paso, TX
for Appellee the Estate of Marialy Ruby Venegas Morga
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Jocelyn Drennan
Jeff Croasdell
Brenda M. Saiz
Albuquerque, NM
for Appellants
GARCIA, Judge Pro Tem.
{1} This appeal is before us following a jury verdict for more than $165 million to Plaintiffs for wrongful death, personal injury, and loss of consortium claims that arose from a catastrophic automobile accident between a small pickup truck and a FedEx transport tractor-trailer. Defendants assert that the district court erred in denying their motion for a new trial or a remittitur of the damages awarded by the jury. Specifically, Defendants argue that (1) the verdict was not supported by substantial evidence; and (2) the jury‘s verdict was tainted by passion, prejudice, partiality, sympathy, undue influence, or a mistaken measure of damages. In addition, Defendants argue that the district court erred in awarding prejudgment interest. This case presents an opportunity to address important
BACKGROUND
{2} On June 22, 2011, at approximately 1:30 a.m., on the interstate between Las Cruces and Deming, New Mexico, a combination tractor-trailer vehicle (the FedEx truck) struck a small pickup truck driven by Marialy Ruby Venegas Morga (Ms. Morga). Accompanying Ms. Morga was her four-year-old daughter, Ylairam Morga (Ylairam), and nineteen-month-old son, Yahir Morga (Yahir). The FedEx truck was operated by FedEx Ground Package System, Inc. (FedEx) through independent FedEx contractors, and the actual driver for the FedEx contractors was Elizabeth Quintana (Quintana) (FedEx, the FedEx contractors, and Quintana are collectively referred to as Defendants). Ms. Morga was either stopped or barely moving on the right-hand side of her traffic lane when the FedEx truck struck her vehicle from behind at sixty-five miles per hour without slowing. The impact and its resulting injuries were severe, with multiple fatalities occurring. Ms. Morga and Ylairam died, and Yahir was seriously injured. Quintana also died as a result of the accident.
{3} Alfredo Morga, Ms. Morga‘s spouse, brought suit against Defendants, individually and as personal representative for his daughter, Ylairam, and as next friend for his son, Yahir. Mr. Morga also asserted claims against Defendants for personal injury and wrongful death. Ms. Morga‘s father, Rene Venegas Lopez, as her personal representative, brought suit against Defendants for wrongful death (Mr. Morga individually and in his representative capacity for both of his children, as well as Mr. Lopez in his capacity as personal representative for Ms. Morga are referred to in this opinion as Plaintiffs). Mr. Lopez and his wife, Georgina Leticia Venegas, also intervened in the lawsuit (Intervenors) and asserted personal claims for loss of consortium resulting from the death of their daughter Ms. Morga. Prior to trial, FedEx stipulated that it would “pay for any damages attributed to [FedEx] and the other named [D]efendants.”
{4} At trial, Plaintiffs presented evidence of damages related to the wrongful death, personal injury claims by Plaintiffs and also the loss of consortium claims by Mr. Morga and Intervenors. Plaintiffs also asked the jury to award punitive damages against Defendants. The jury found all Defendants negligent and liable for Plaintiffs’ claims. The jury apportioned fault for the accident as follows: FedEx (65 percent), the FedEx contractors and Quintana (10 percent each for a total of 30 percent), and Ms. Morga (5 percent). The jury awarded compensatory damages as follows:
| | $61,000,000 |
| For the wrongful death of Ms. Morga | $32,000,000 |
| For personal injury and the loss of consortium for his mother, to Yahir | $32,000,000 |
| For emotional distress, resulting from physical and psychological injury, and the loss of consortium for his spouse and child, to Mr. Morga | $40,125,000 |
| For the loss of consortium of his daughter, to Mr. Lopez | $208,000 |
| For the loss of consortium for her daughter, to Ms. Venegas | $200,000 |
No punitive damages were awarded by the jury.
{5} After the verdict was entered on January 24, 2015, the district court judge presiding over the case was involved in an ex parte conversation with Plaintiffs’ counsel regarding potential counsel on appeal. Recognizing that the ex parte conversation could be perceived as improper, the district court judge recused herself. The case was reassigned to Judge Mathew to preside over all the post-trial proceedings.
{6} Defendants moved for a new trial or remittitur of the damages award and argued that the verdict was excessive. The district court denied both motions. The court concluded that there was substantial evidence to support the verdict, that it was not the result of passion, prejudice, a mistaken measure of damages, or other improper factors, and that it would be inappropriate to substitute its judgment for that of the jury. Plaintiffs then proposed a form of judgment that included an award of prejudgment interest. The district court held an evidentiary hearing on the motion and subsequently ruled that, under
DISCUSSION
{7} On appeal, Defendants do not assert any issues related to the jury‘s determination of liability, but only contested the jury‘s award of compensatory damages and the district court‘s award of prejudgment interest.
I. Denial of Defendants’ Motions for New Trial or Remittitur
A. Standard of Review
{8} We review the district court‘s denial of Defendants’ motions for a new trial or remittitur for an abuse of discretion. See State v. Mann, 2002-NMSC-001, ¶ 17, 131 N.M. 459, 39 P.3d 124 (“[The appellate courts] will not overturn a trial court‘s denial of a motion for a new trial unless the trial court abused its discretion.“); Hanberry v. Fitzgerald, 1963-NMSC-100, ¶ 2, 72 N.M. 383, 384 P.2d 256 (applying an abuse of discretion standard for the review of an appellant‘s “claim that the verdict [was] excessive, requiring a remittitur or a new trial“); Sandoval v. Baker Hughes Oilfield Operations, Inc. (Jose Sandoval), 2009-NMCA-095, ¶ 13, 146 N.M. 853, 215 P.3d 791 (“The applicable standard in reviewing the denial of a motion for a new trial or remittitur is [an] abuse of discretion.“). “[The] trial court abuses its discretion when its decision is contrary to logic and reason.” N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 6, 127 N.M. 654, 986 P.2d 450 (internal quotation marks
{9} Our appellate courts defer to the jury in awarding damages and also to the trial court in its assessment of a motion for new trial or a motion to remit the amount of damages awarded by the jury. See Ennis v. Kmart Corp., 2001-NMCA-068, ¶ 27, 131 N.M. 32, 33 P.3d 32 (“When a trial court denies a motion for a remittitur, we defer to the trial court‘s judgment. When the jury makes a determination and the trial court approves, the amount awarded in dollars stands in the strongest position known in the law.” (internal quotation marks and citations omitted)); see also Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 49, 127 N.M. 47, 976 P.2d 999 (recognizing the appellate court‘s reliance on the trial court because of its unique position “to observe the witnesses and their demeanor as well as the jurors’ attitude during the trial” whereas we review the record cold); Salopek v. Friedman, 2013-NMCA-087, ¶ 30, 308 P.3d 139 (“In determining whether a jury verdict is excessive, we do not reweigh the evidence but determine whether the verdict is excessive as a matter of law. The jury‘s verdict is presumed to be correct.” (internal quotation marks and citation omitted)).
{10} Defendants argue that such deference to the district court should not be afforded in this particular case because Judge Mathew did not have the opportunity to observe the proceedings first hand. Defendants therefore contend that a de novo standard of review should apply. Defendants cite no authority to support their contention that a judge duly appointed to proceed with an ongoing case, pursuant to
applied. See State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, ¶¶ 20-22, 135 N.M. 375, 89 P.3d 47 (stating that although the Court of Appeals is bound by Supreme Court precedent, we may explain “any reservations [this Court] might harbor over its application of [Supreme Court] precedent so that we will be in a more informed position to decide whether to reassess prior case law“). We can only note the potential logic of Defendants’ argument regarding applying a different standard of review in the present case, but any change to the standard of review must be implemented by our Supreme Court. Third, although Judge Mathew was not in the “unique position to observe the witnesses and their demeanor as well as the jurors’ attitude during the trial[,]” Coates, 1999-NMSC-013, ¶ 49, he does have “experience with juries in the community,” which this Court stated is “an indispensable safeguard built into our American civil jury system.” Sandoval v. Chrysler Corp. (James Sandoval), 1998-NMCA-085, ¶ 14, 125 N.M. 292, 960 P.2d 834. Fourth, Defendants made no objection below regarding Judge Mathew‘s capacity or ability to fully preside over the hearing for remittitur or a new trial.
{11} In reviewing the actual evidence presented at trial, “we review the sufficiency of the evidence to support the verdict by examining whether the verdict is supported by such relevant evidence that a reasonable mind would find adequate to support
B. Analysis of the Evidence to Support the Jury‘s Award
{12} “The purpose of compensatory damages is to make the injured party whole by compensating it for losses.” Cent. Sec. & Alarm Co. v. Mehler, 1996-NMCA-060, ¶ 11, 121 N.M. 840, 918 P.2d 1340. “A jury‘s damages award will be upheld unless it appears that the amount awarded is so grossly out of proportion to the injury received as to shock the conscience.” Salopek, 2013-NMCA-087, ¶ 31 (internal quotation marks and citation omitted). This Court is required to consider two factors in making the determination of whether a jury award is excessive. First, we consider “whether the evidence, viewed in the light most favorable to the plaintiff, substantially supports the award.” Wachocki v. Bernalillo Cnty. Sheriff‘s Dep‘t., 2010-NMCA-021, ¶ 48, 147 N.M. 720, 228 P.3d 504 (alterations, internal quotation marks, and citation omitted), aff‘d, 2011-NMSC-039, 150 N.M. 650, 265 P.3d 701. If any portion of the award is supported by substantial evidence, we must next consider “whether there is an indication of passion, prejudice, partiality, sympathy, undue influence or a mistaken measure of damages on the part of the fact[-]finder.” Id. If the award does not satisfy either of these tests, then all or some portion of the award is deemed excessive. See Jose Sandoval, 2009-NMCA-095, ¶ 16. In the present case, Defendants argue that the evidence did not support the award of damages and that passion, prejudice, or sympathy affected the jury‘s determination of the amount of damages it awarded. However, even if the jury‘s award is higher than the court would have given, this is not sufficient to disturb a verdict. Id. ¶ 17. An award of damages will be disturbed only in extreme circumstances. See Salopek, 2013-NMCA-087, ¶ 30. “The proper approach is to examine the plaintiff‘s evidence related to damages and determine whether that evidence could justify the amount of the verdict, or determine whether the verdict amount was grossly out of proportion to the evidence of the plaintiff‘s [injury].” Id. ¶ 31 (alterations, internal quotation marks, and citation omitted).
{13} Although Defendants concede that the evidence at trial supported an award for compensatory damages,2 they argue that the amounts awarded to Plaintiffs were excessive for two reasons. First, Defendants argue that the awards for wrongful death, bodily injury, and loss of consortium “far exceed any previous awards in this state” and the evidence was insufficient to support such an excessive award. Second, Defendants argue that because the awards for the economic injury make up such a
small portion of the total award (between 1 and 3 percent), the damage awards are “grossly disproportionate to the injury” and constitute legal error requiring a new trial on the issue of damages. We recognize that Defendants’ arguments are both primarily directed at whether the amount of the jury‘s award for non-economic damages “is so grossly out of proportion to the injury received as to shock the conscience” of this Court. Id. (internal quotation marks and citation omitted).
1. Substantial Evidence Was Presented to Support the Award of Economic and Non-Economic Damages to Plaintiffs
{14} In the present case, Defendants do not dispute that the jury was properly instructed regarding its duty to review the evidence and calculate Plaintiffs’ damages. The jury was instructed as follows:
The guide for you to follow in determining fair and just damages is the enlightened conscience of impartial jurors acting under the sanctity of your oath to compensate the beneficiaries with fairness to all parties to
this action. Your verdict must be based on evidence, not on speculation, guess or conjecture. You must not permit the amount of damages to be influenced by sympathy or prejudice, or by the grief or sorrow of the family, or the loss of the deceased‘s society to the family.
They were further instructed to consider neither the property or wealth of the beneficiaries nor that of Defendants in arriving at a verdict. We summarize the compensatory damages evidence related to each Plaintiff separately.
a. Alfredo Morga
{15} The jury awarded Mr. Morga $40.125 million for compensatory damages. The jury was instructed that if they should decide in favor of Mr. Morga, they must “fix the amount of money which will reasonably and fairly compensate him” for injuries related to the following elements of damages: past and future medical expenses; the “nature, extent[,] and duration of the injury[;]” pain and suffering experienced as a result of the injury; loss of enjoyment of life; aggravation of a pre-existing ailment or condition; and emotional distress resulting from the death of his wife, Marialy, his daughter, Ylairam, and the injuries to his son Yahir.
{16} The evidence established that, prior to the accident, Mr. Morga suffered from epilepsy which was controlled by medication. Mr. Morga‘s epilepsy intensified after the accident and became more frequent. Additionally, expert testimony established that Mr. Morga suffered from posttraumatic stress disorder, major depressive disorder, and that he would need at least a year of intensive psychotherapy and psychiatric care. Dr. Angelo Romagosa, a medical doctor specializing in physical medicine and rehabilitation, testified that Mr. Morga would need $250,068 in physician care, medications, and rehabilitation services in the future due to the injuries suffered as a result of the accident.
{17} With regard to the emotional distress of Mr. Morga due to the loss of society and companionship for the injuries and death of his family members, the jury heard substantial evidence about this close young family and the irreparable personal loss that resulted from the accident. Mr. Morga testified about meeting Ms. Morga as a freshman in high school. The Morgas began dating and had their daughter, Ylairam, during their senior year. Mr. Morga testified about the details of their early lives—high school, his work at various part-time jobs to support the family—as well as Ms. Morga‘s background in high school, youthful activities, and eventually taking care of the home and their new baby, Ylairam. In October 2009 they had their second child, Yahir. Mr. Morga also provided numerous details about their daily lives, close relationship, buying a home, advancements at work, and plans for the future after Yahir was born. Mr. Morga then testified to his recollection of when he went to the scene on the night of the accident. He was told not to approach the vehicle where his wife and daughter were still located. He then went to the hospital in El Paso, Texas, where his son was taken following the accident and where he stayed for several days. Mr. Morga testified that he was unable to return to work for months after the accident. Mr. Morga also described how the accident severely affected him emotionally.
b. Yahir Morga
{18} The jury compensated Yahir $32 million for past and future damages for injuries he suffered as a result of the accident. The jury was instructed that should they decide in favor of Yahir, they must “fix the amount of money which will reasonably and fairly compensate [him]” for injuries related to the following elements of damages: past and future medical expenses; the “nature, extent[,] and duration of the injury“; pain and suffering experienced; loss of enjoyment of life; and emotional distress resulting from the death of his mother, Ms. Morga.
{19} At trial, the evidence showed that Yahir suffered a distal tibial metaphyseal fracture, traumatic brain injury, a liver laceration, a right pulmonary contusion, and other traumatic injuries. Yahir incurred $58,444.68 in medical treatment. Dr. Romagosa testified that Yahir would need $417,926.47 in future medical care. Additionally, Dr. King testified that Yahir would be at an “increased risk for
c. Ylairam Morga
{20} The jury compensated the Estate of Ylairam $61 million for her wrongful death. The jury was instructed that if it were to find for the Plaintiffs, it “must then fix the amount of money which you deem fair and just for the life of Ylairam,” for the following elements of damages: “reasonable expenses of funeral and burial[;] lost earning capacity, and the lost value of household services; [t]he value of her lost life; and the mitigating or aggravating circumstances attending the wrongful act, neglect, or default.”
{21} Ylairam was only four years old at the time of the accident. At trial, Plaintiffs presented evidence regarding several aspects of Ylairam‘s life and her relationship with her family for the jury to consider in determining the amount of damages to be awarded for her death, including testimony by her father, Mr. Morga and various family photographs.
d. Marialy Morga
{22} The jury awarded the Estate of Ms. Morga $32 million for her wrongful death. The jury was instructed that it “must . . . fix the amount of money which you deem fair and just for [her] life,” including the following the elements of damages: “[t]he reasonable expenses for the funeral and burial; [t]he lost earning capacity and the [lost] value of household services; [t]he value of [her] life apart from her earning capacity; aggravating or mitigating circumstances attending the wrongful act, neglect or default; [and t]he loss of guidance and counseling to the deceased‘s minor child.”
{23} At trial, specific evidence was presented regarding Ms. Morga‘s life so that the jury could make its determination of the damages incurred as a result of Ms. Morga‘s death. Ms. Brown testified about Ms. Morga‘s early life, her family and home in El Paso, Texas, as well as her personality and interests. Ms. Brown also testified regarding the closeness of their relationship. She presented Ms. Morga as a good mother, as well as an attentive daughter and wife. Mr. Morga also testified about his relationship with his wife, buying their first home, raising their two children, and their plans to put their children through college. He also testified that Ms. Morga had been planning to get her graduate equivalency degree, and someday obtain her cosmetology degree.
e. The Evidence Supports the Jury Award
{24} Defendants’ arguments regarding the sufficiency of the evidence are, at their core, solely objections to the jury‘s large awards for non-economic injuries to Plaintiffs. Defendants did not target any specific component of Plaintiffs’ evidence as insufficient or erroneous. Defendants do not dispute that the non-economic injuries and damages incurred by Plaintiffs are unique, intangible, and difficult to quantify in financial terms. As such, our judicial system relies on juries and trial courts, as the representatives of their local community, to best evaluate and determine the monetary value of these non-economic injuries, including pain and suffering, and the loss of life. See James Sandoval, 1998-NMCA-085, ¶¶ 13-14 (“The amount of awards necessarily rests with the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is just compensation, and, in the final analysis, each case must be decided on its own facts and circumstances. . . . In addition, the trial judge‘s experience with juries in the community provides an indispensable safeguard built into our American civil jury system.” (internal quotation marks and citation omitted)).
{25} In this case, Defendants made a strategic decision to entrust the jury with the decision of how to determine the value of a life from the evidence presented, even going so far as to exclude Plaintiffs’ economist from providing testimony regarding “specific damages for the value of a statistical life[,]” including “any numbers offering a benchmark
2. Comparison to Similar Verdicts in Other Cases Will Not be Applied to Develop Defendants’ Sufficiency of the Evidence Argument
{26} Defendants’ argument centers on the awards for wrongful death, pain and suffering, and emotional distress damages, all of which are non-economic and cannot be determined by any fixed standard. See Baca v. Baca, 1970-NMCA-090, ¶ 28, 81 N.M. 734, 472 P.2d 997 (“There is no fixed standard for measuring the value of a life, and, as in personal injury cases, wide latitude is allowed for the exercise of the judgment of the jury in fixing the amount of such an award.“). Instead, a jury is given wide latitude in fixing the amount of such awards. See id.; see also James Sandoval, 1998-NMCA-085, ¶ 13 (recognizing that “there can be no standard fixed by law for measuring the value of pain and suffering” (omission, internal quotation marks, and citation omitted)).
{27} Defendants ask this Court to compare the amount of damages awarded in this case to other similar cases and cite to our Supreme Court‘s analysis in Vivian v. Atchison, Topeka & Santa Fe Railway Co., to support their argument that such comparisons are “helpful” to determine whether a verdict is excessive. 1961-NMSC-093, ¶ 11, 69 N.M. 6, 363 P.2d 620 (emphasizing “that each case must be determined upon its own facts and circumstances[,] nevertheless, . . . a consideration of other verdicts and a comparison of the facts and circumstances is helpful“). We do not consider Vivian helpful toward providing guidance in the present case. First, it is very difficult for this Court to apply the analysis in Vivian to the facts in this case. Vivian involved a workplace injury where, after a review of the evidence, our Supreme Court ultimately determined that “[i]t would serve no useful purpose to review other verdicts” in order to grant the plaintiff the option between remittitur and a new trial limited solely to the issue of damages. Id. ¶¶ 1-2, 25-26. Second, Defendants have failed to cite to any authority where a court conducted an actual comparison of other verdicts in order to grant a new trial or remit the jury‘s damage award to a lesser amount. Third, Defendants conceded at oral argument that they failed to identify in the record and did not otherwise provide the district court or this Court with any evidence of comparable jury awards that would support their
{28} Instead, this Court has continued to emphasize that “each case must be decided on its own facts and circumstances.” James Sandoval, 1998-NMCA-085, ¶ 13 (internal quotation marks and citation omitted). We have also questioned the usefulness of comparing non-economic damage awards in one case with the awards in other cases. See Jose Sandoval, 2009-NMCA-095, ¶ 18 (noting that “[w]e are skeptical about the usefulness of comparing awards for pain and suffering in other cases“); Robinson v. Mem‘l Gen. Hosp., 1982-NMCA-167, ¶ 20, 99 N.M. 60, 653 P.2d 891 (stating that the defendant‘s request that the court compare the verdict awarded to other cases was improper because “the question of excessive damages must be determined from the evidence in [each] case“); Sweitzer v. Sanchez, 1969-NMCA-055, ¶ 5, 80 N.M. 408, 456 P.2d 882 (stating that what this Court may have done in other cases was of “no consequence [because] the question of prejudice and . . . the measure of damages must be determined from the evidence in [each] case” (internal quotation marks, and citation omitted)). We recognize that our Supreme Court has upheld a district court‘s discretion in granting a substantial remittitur to a jury‘s damages verdict, for a claim of emotional distress, when no economic damages were offered into evidence. See Nava v. City of Santa Fe, 2004-NMSC-039, ¶¶ 16-20, 136 N.M. 647, 103 P.3d 571 (holding that the remittitur of the amount awarded to a plaintiff for emotional distress was upheld on a comparative basis where very specific factual findings were issued by the district court, there was a lower amount requested by the plaintiff at trial, and due to the lack of any evidence of physical harm). However, this case is very distinguishable from Nava, both factually and procedurally. In the present case, undisputed economic damages were presented and awarded to Plaintiffs, and this Court is now being asked to reverse, not affirm, the remittitur decision issued by the district court—a completely opposite analysis.
{29} Defendants simply argue that the damage awards for wrongful death are “tens of millions of dollars greater than any awards in similar cases and far exceed any previous award in this [S]tate for wrongful death or comparable loss” and “far outstrips any prior verdict.” Yet Defendants concede that they did not bring any evidence of other non-economic damage award cases to the attention of the district court for comparison. Even if a comparative verdicts analysis would be helpful to this Court in assessing excessive damages, Defendants have elected not to offer such an analysis or to make any connection to the evidence in this case. This Court is under no obligation to go outside the record to investigate and develop Defendant‘s argument about greatly exceeding all prior damage awards in this State. See Santa Fe Expl. Co. v. Oil Conservation Comm‘n, 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819 (stating that where a party fails to cite any portion of the record to support its factual allegations, the appellate courts need not consider its argument on appeal); Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty to review an argument that is not adequately developed.“); see also
3. A Comparison of Non-Economic to Economic Damages is Unsupported by our Case Law
{30} Next, Defendants argue that because the economic damages proven at trial make up a “minuscule part” of the total amount of damages awarded, the total amounts awarded to Plaintiffs are grossly disproportionate to the measurable injuries that occurred. We begin by recognizing that this Court has specifically rejected any fixed, mathematical formula as the best way to arrive at a damage award for pain and suffering—one aspect of non-economic damages—because “there can be no standard fixed by law for measuring the value of pain and suffering.” James Sandoval, 1998-NMCA-085, ¶ 13 (omission, internal quotation marks, and citation omitted). Instead, we have concluded time and again that, although it may be frustrating to assess non-economic damages without “a fixed, mathematical formula[,] . . . the best way to arrive at a reasonable award of damages is for the trial judge and the jury to work together, each diligently performing its respective duty to arrive at a decision that is as fair as humanly possible under the facts and circumstances of a given case.” Id. ¶ 16.
{31} We leave any continuing concerns about the use of mathematical formulas to establish a legal basis for addressing excessive jury verdicts to the public and its ongoing debate with the legislative branch about the American judicial system and any major policy changes in New Mexico. See id. ¶ 17 (recognizing the public criticism and ongoing debate regarding excessive jury verdicts). Even in James Sandoval where “[t]he [trial] judge acknowledged that the jury verdict shocked the conscience of the court” we remanded for further consideration rather than undertake our own calculation of damages. Id. ¶¶ 7, 12-18. At this time, we see no support for Defendants’ argument that the appellate courts should use fixed mathematical formulas to establish legal error and as the proper basis for reversing a jury‘s non-economic damage award.
B. The Verdict is Not the Result of Jury‘s Passion or Prejudice
{32} Defendants argue that we may simply “infer” that the jury was improperly influenced by passion or prejudice from the verdict itself and that it is “not necessary to point to trial error as a cause.” However, we disagree that our case law allows us to infer improper passion or prejudice simply because the verdict is large and therefore “speaks for itself as to the existence of passion or prejudice.” In Vivian, our Supreme Court stated that a verdict was “so grossly excessive as to require an inference that it resulted from passion, prejudice, partiality, [and] sympathy[.]” 1961-NMSC-093, ¶ 14. However, our Supreme Court made this statement only after having undertaken a “careful review of the evidence of pain, suffering, loss of earnings, and physical injuries” and holding that there was “no substantial evidence to support [the] verdict[.]” Id. Defendants have failed to present any type of evidentiary review for this Court to analyze in the present case, and we shall not undertake such a review or consider such an argument that is not developed on appeal. See Santa Fe Expl. Co., 1992-NMSC-044, ¶ 11 (stating that where a party fails to cite any portion of the record to support its factual allegations, the appellate courts need not consider its argument on appeal); Corona, 2014-NMCA-071, ¶ 28 (“This Court has no duty to review and argument that is not adequately developed.“).
{33} We also disagree with Defendants’ argument that because the jury awarded sums “far greater” than requested by Plaintiffs,
{34} We now turn to the specific incidences occurring during trial that Defendants argue provoked passion or prejudice in the jury. These incidences include Mr. Morga‘s trial testimony and what Defendants characterize as “misconduct by Plaintiffs’ counsel” in closing argument.
1. Mr. Morga‘s Testimony
{35} Defendants argue that Mr. Morga‘s testimony was “emotionally wrenching” when it addressed the sequence of events involving when he was informed of the accident, arrived at the scene, and observed the vehicle. Defendants concede that Mr. Morga‘s testimony was “an unavoidable aspect of the trial” but insist that the testimony “easily could have moved the jury” to award excess damages based on improper passion or prejudice.
{36} Mr. Morga‘s testimony was not objected to by Defendants. Counsel elicited testimony from Mr. Morga concerning his wife and children, as well as his description of the week leading up to the accident. Mr. Morga became visibly upset when asked how he learned about the accident and the district court ordered a recess break for the jury. Plaintiffs’ counsel was then allowed to use leading questions on direct examination regarding when Mr. Morga arrived at the scene of the accident. When Mr. Morga again began crying, the district court took a second recess, and it ordered counsel to move on to another subject. Defendants’ counsel commented, “[i]t‘s not necessary to make [Mr. Morga] cry to the jury, I‘m sorry.” Although the district court expressed concern with Mr. Morga‘s health and the impact of the testimony, there is no indication in the record that the district court believed improper prejudice had occurred from his testimony. Mr. Morga returned to the stand and completed the direct and cross-examination without any further breaks.
{37} Throughout Mr. Morga‘s testimony, Defendants did not ask the district court to strike any of his testimony, and Defendants never requested any kind of limiting instruction or admonition to the jury. Prior to deliberations, the jury was properly instructed that sympathy was not to play a role in the jury‘s determination. Without more than a witness crying during testimony that both parties expect to be visibly emotional, we cannot presume that the jury violated its oath and failed to follow the jury instructions. See Norwest Bank N.M., N.A. v. Chrysler Corp., 1999-NMCA-070, ¶ 40, 127 N.M. 397, 981 P.2d 1215 (stating that the appellate courts “assume the jury followed such instructions absent evidence to the contrary“). Mr. Morga‘s testimony was understandably emotional, but there is no indication in the record that the testimony incited improper passion or prejudice within the jury. See State v. Finnell, 1984-NMSC-064, ¶ 23, 101 N.M. 732, 688 P.2d 769 (noting that the introduction of evidence that allegedly caused a witness to become very emotional and cry during her testimony was neither prejudicial nor sufficient to arouse the passion of the jury and require a mistrial); State v. Garnenez, 2015-NMCA-022, ¶¶ 25-26, 344 P.3d 1054 (holding that a pause in trial and the removal of a member of the courtroom gallery who became emotional and cried during upsetting testimony did not mandate a mistrial be declared or prevent the jury from rendering a fair and impartial verdict).
2. Closing Argument
{38} Next, Defendants argue that Plaintiffs’ closing argument caused the jury to be infected by improper passion or prejudice. Defendants point to three incidences in Plaintiffs’ closing argument: (1) a photograph admitted into evidence, but previously unused by any witness at trial, depicting the crushed vehicle in which Ms. Morga‘s body was partially visible; (2) what Defendants characterize as Plaintiffs arguing to the jury that FedEx was attempting to “shift responsibility for the accident to its contractors“; and (3) Plaintiffs’ “justice needs to be ignited” comment related to punitive damages. Defendants argue that the above incidents during closing arguments, individually or in combination, provide the legal basis for establishing improper passion or prejudice by the jury and causing an “excessive award of damages.”
{39} We begin our review by emphasizing that a defendant must make “a timely and specific objection[, one] that apprised the district court of the nature of the claimed error and that allows the district court to make an intelligent ruling thereon” in order to preserve an issue for appeal. Jose Sandoval, 2009-NMCA-095, ¶ 56; see
{40} In Jose Sandoval, this Court declined to consider alleged instances of misconduct by the plaintiff that were argued to be the cause of improper passion or prejudice because the defendant did not make a proper objection at trial. Id. ¶¶ 60-72. However, this Court noted that
[i]n cases involving improper closing argument, as when counsel go outside the record[,] we reserve the right in a proper case to reverse the judgment and award a new trial even if objection be not made. However, this rule is to only be applied as a last resort and is not to be applied unless we are satisfied that the argument presented to the jury was so flagrant and glaring in fault and wrongdoing as to leave the bounds of ethical conduct, such as going outside the record.
Id. ¶ 57 (emphasis added) (internal quotation marks and citations omitted). Defendants argue that the specific instances it has cited satisfy this Jose Sandoval exception because they are “so flagrant and glaring in fault . . . as to leave the bounds of ethical conduct[.]” Defendants also argue that our Jose Sandoval decision represents an outlier in our case law that should not be perpetuated. These arguments are not compelling. A formal Court of Appeals opinion is controlling authority. See Gulbransen v. Progressive Halcyon Ins. Co., 2010-NMCA-082, ¶ 13, 148 N.M. 585, 241 P.3d 183. Our reasoning in Jose Sandoval is in line with the well-established rule on preservation. 2009-NMCA-095, ¶ 57 (noting that “other than in Florida, no other courts in this country allow improper argument to be raised for the first time on appeal in civil cases, but noting that in Griego v. Conwell, 1950-NMSC-047, ¶ 17, 54 N.M. 287, 222 P.2d 606 our] Supreme Court warned that it would [reserve the right to] do so, but it has never carried out its threat” (internal quotation marks and citations omitted)); see
{41} Finally, we disagree with Defendants that the alleged incidents of misconduct by Plaintiffs, either individually or collectively, are “so flagrant and glaring in fault and wrongdoing as to leave the bounds of ethical conduct” or rise to the level of flagrant or fundamental error. Jose Sandoval, 2009-NMCA-095, ¶ 57; see Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, L.L.C., 2012-NMSC-004, ¶¶ 32-33, 274 P.3d 97 (“The fundamental error doctrine is codified in
a. The Photograph
{42} The district court ruled that the photograph of the crash site could be used at trial if a “yellow sticky” note was placed to cover what appeared to be a human arm in the photo. The “yellow sticky” note purportedly fell off before closing argument. However, Defendants made no objection to the error and counsel for Defendants acknowledged that he chose not to object to this error during the closing argument. After Plaintiffs rested and the jury was excused for a recess break, Defendants’ counsel mentioned the absence of the “yellow sticky” note. The district court acknowledged the missing note covering the designated portion of the photo and assured the parties that the photo would not go to the jury during deliberations as a solution to the issue now being brought to the court‘s attention. No further objection was made to this decision by the district court to address the “yellow sticky” note issue.
{43} Defendants argue that Plaintiffs’ use of the photograph is an example of “flagrantly improper conduct” that could not be cured by an instruction from the district court. However, Defendants have failed to show that Plaintiffs’ use of the photograph was so glaring in fault as to leave the “bounds of ethical conduct” or that the district court‘s ruling to address the issue rose to the level of fundamental error. See Grammar v. Kohlhaas Tank & Equip. Co., 1979-NMCA-149, ¶ 38, 93 N.M. 685, 604 P.2d 823. There is no indication in the record that: (1) Plaintiffs’ use of the photograph without the “yellow sticky” note was intentional; (2) any comment was made to the jury by Plaintiffs’ counsel regarding the portion of the photograph that was intended to be covered and excluded by the “yellow sticky” note; or (3) the photograph was so gruesome and inflammatory that, without the “yellow sticky” note, it inflicted flagrant and incurable prejudice upon the jury. See Allen v. Tong, 2003-NMCA-056, ¶¶ 35, 39, 133 N.M. 594, 66 P.3d 963 (holding that counsel‘s statement in closing argument, “if the jury found [the d]efendant was not negligent, then that will be the end of this trial and your job will be over, and you will get back to your jobs and families[,]” was not “a flagrant or glaring wrongdoing that requires [this Court] to invoke fundamental error” (internal quotation marks omitted)). Furthermore, the district court addressed the issue on the record and recognized that any potential harm appeared very minor at that point, stating “I seriously doubt [the jury] recognized that as an arm. If you hadn‘t told me it was an arm when we first discussed it, I don‘t think I would‘ve known that.” Despite Defendants’ assertion at oral argument that this highly prejudicial photograph is part of the record on appeal, it was not provided as part of the record for our independent review. As a result, we have no independent basis to question the district court‘s analysis and resolution of the issue at trial. See Williams v. Mann, 2017-NMCA-012, ¶ 19, 388 P.3d 295 (“Upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the trial court‘s decision, and the appellate court will indulge in reasonable
b. Comments Related to Allocation of Fault
{44} Defendants argue that Plaintiffs’ counsel made improper comments in closing argument related to FedEx‘s fault and responsibility for the damages incurred by Plaintiffs. First, Defendants argue that Plaintiffs’ counsel tried to shift responsibility for the accident to its contractors, even though FedEx had agreed to pay for any damages attributed to its contractors or Quintana. Second, Defendants contend that Plaintiffs’ comment “it‘s happened before” regarding other FedEx accidents defied Defendants’ motion in limine to exclude all reference to other accidents involving Defendants. However, after reviewing the complete record of Plaintiffs’ closing argument, we interpret Plaintiffs’ comment differently. Comparative fault was a specific issue at trial and the parties disagreed about how the jury should allocate fault between the various Defendants. Plaintiffs argued that FedEx was attempting to allocate fault to their contractors and had used similar arguments in the past. Although FedEx assumed liability for all Defendants in this matter, the jury was still required to apportion fault amongst each Defendant. Defendants did not object to the jury verdict form that listed all four Defendants separately, as well as Ms. Morga, for the allocation of comparative liability. Because Defendants did not object to Plaintiffs’ comments in closing or the jury instructions, we must apply a fundamental error standard of review. See Allen, 2003-NMCA-056, ¶¶ 33-34 (noting that a failure to properly object to issues regarding the instructions tendered to the jury will only be reversed on a basis of fundamental error). Defendants have again failed to convince this Court that Plaintiffs’ comments were so glaring in fault as to leave the “bounds of ethical conduct” or that the error rose to the level of fundamental error. Grammar, 1979-NMCA-149, ¶ 38. Where the allocation of comparative fault was a proper function to be decided by the jury, Plaintiffs’ comments would not be unethical or otherwise create any inference that the jury rendered an improper verdict.
c. Plaintiffs’ Closing Argument Regarding the Need to Ignite Justice
{45} Defendants objected to one fragment of Plaintiffs’ closing argument in particular, the statement that “they don‘t want to show the pictures to inflame the [j]ury. Well, sometimes justice needs to be ignited.” Defendants argue that this type of comment encouraged the jury to follow their passion and misled the jury by implying that Defendants sought to suppress photographic evidence. Again, when read in the full context of closing argument, Plaintiffs’ statements were not outside the scope of proper argument, especially where Plaintiffs asked the jury to punish Defendants for their conduct and punitive damages were an issue the jury was properly required to decide. In addition, the jury was properly instructed that all arguments made by counsel in closing were not “to be considered by you as evidence or as correct statements of the law, if contrary to the law given to you in [the jury] instructions.” We conclude that if Defendants believed that Plaintiffs’ closing arguments were clearly illegal, unethical, or going outside the record, they should have timely and specifically objected at trial, requested an appropriate curative instruction or admonishment, and given the district court the opportunity to correct any error. See Jose Sandoval, 2009-NMCA-095, ¶ 58 (“We believe that if defense counsel had timely and specifically objected and had requested and received an appropriate curative instruction and/or admonition, the issue would not now be in this Court.“); Grammar, 1979-NMCA-149, ¶ 34 (“The objection to alleged improper argument must be specified and made known to the [trial] court so that the court may intelligently rule thereon. When that is not done, the proposition is not properly reviewable on appeal.“). Without giving the district court an opportunity to evaluate Plaintiffs’
C. The Jury‘s Award Was Not the Result of a Mistaken Measure of Damages
{46} Finally, Defendants argue again that we may infer from the size of the jury‘s verdict that it applied a mistaken measure of damages. See Hanberry, 1963-NMSC-100, ¶ 32, 72 N.M. 315, 383 P.2d 245 (stating that after a careful review of the evidence, the award was so extremely excessive “that it is not truly supported by the evidence and therefore must indicate that the jury was mistaken in the measure of damages“). Defendants assert that “the jury mistakenly applied a punitive measure of damages in awarding compensatory damages.” We disagree that such an appellate inference can be drawn exclusively from the size of a damages verdict or the evidence presented for an award of punitive damages. We emphasize that Defendants have the burden, as the appellants, to demonstrate from the record that the jury was mistaken in its award. See Coates, 1999-NMSC-013, ¶ 51, 126 N.M. 411, 970 P.2d 1122 (stating that in appealing a denial of a remittitur, the appellant “bears the burden of showing that the record supports its contention that there was error in the verdict” or “that the verdict (i.e., damage awards) was infected with passion, prejudice, partiality, sympathy, undue influence, or some corrupt cause or motive” (internal quotation marks and citation omitted)).
{47} Plaintiffs asked the jury to award 2 percent of FedEx‘s $7 billion net worth as punitive damages in this case. Defendants argue that although the jury awarded no punitive damages, the amount in compensatory damages awarded—$165 plus million—is close to what was requested for punitive damages—$140 million. In the review of the special verdict form submitted to the jury, Judge Mathew specifically noted, “[t]he special verdict form indicates clearly that the jury understood that they were returning a verdict for compensatory damages.” Furthermore, there are indications from the poll conducted of the jury following the actual verdict that several jurors wanted to give additional punitive damages, in addition to the amount awarded for compensatory damages. Defendants even stated on the record, “probably a couple of them wanted [to give] punitives” and the trial court agreed with Defendants’ observation of the issue and comment. Based upon this clear record, Defendants’ argument that the jury mistakenly applied a punitive measure of damages to award compensatory damages is not supported. See id. ¶ 52 (recognizing that the defendants had not “borne [their] burden of proving error“); Baxter v. Gannaway, 1991-NMCA-120, ¶ 18, 113 N.M. 45, 822 P.2d 1128 (recognizing that when “a jury makes an award which covers each element of damages,” it is not our place to “say as a matter of law the jury verdict is founded upon a mistaken measure of damages“).
II. Prejudgment Interest
{48} The district court had the discretion to award prejudgment interest.
- if [Plaintiffs were] the cause of unreasonable delay in the adjudication of [Plaintiffs‘] claims; and
-
if [Defendants] had previously made a reasonable and timely offer of settlement to [Plaintiffs].
“Prejudgment interest serves two purposes, promoting early settlements and compensating persons[.]” Coates, 1999-NMSC-013, ¶ 55. “Interest is awarded to make the tort victim whole, and has no bearing on the question of punishing the tortfeasor[.]” Id.
{49} On March 31, 2015, the district court held its hearing on the issue of prejudgment interest and specifically limited the evidentiary presentation to factors within the elements of
{50} Defendants now assert that their “liability was not a foregone conclusion” and that “the facts were not clear-cut in Plaintiffs’ favor.” Defendants also argue that the trial court abused its discretion in granting prejudgment interest by ignoring “[d]ifficult legal issues” and “thorny issues of causation, comparative fault, and [damages].” Sunnyland Farms, Inc. v. Cent. N.M. Elec. Co-op., Inc., 2013-NMSC-017, ¶ 62, 301 P.3d 387. We disagree. Defendants’ argument that its right to dispute liability and the complexity of the case precluded its obligation to make a reasonable and timely settlement offer is not a proper reading of the statute. Although the complexity of a case may preclude reaching a settlement,
{51} Finally, Defendants argue that Plaintiffs’ refusal to make a settlement offer that included a provision for confidentiality was unreasonable and the district court‘s acknowledgment of Plaintiffs’ unreasonableness should control the issue of prejudgment interest. In fact, Defendants argue that it was pointless for Defendants to make a reasonable settlement offer despite the district court‘s additional ruling that Defendants showed a “complete lack of appreciation or concern about the potential results of a trial.” We disagree and emphasize that the statute does not require the parties to actually reach a settlement, it only requires that Defendants make a reasonable settlement offer. See
CONCLUSION
{52} For the foregoing reasons, we affirm the district court‘s denial of Defendants’ motions for a new trial or remittitur. We also affirm the district court‘s grant of prejudgment interest.
{53} IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge Pro Tem
WE CONCUR:
MICHAEL E. VIGIL, Judge
M. MONICA ZAMORA, Judge