Bustos v. Hyundai Motor Co.

• Decision Date: 18 October 2010
• Docket Number: No. 28,240.,28,240.
• Citation: 2010 -NMCA- 090,149 N.M. 1,243 P.3d 440
• Parties: Art BUSTOS, as Personal Representative of the Estate of Marcos Leandro Baca, deceased, and Marcos Baca, Terri Baca, and Abel Baca, individually, Plaintiffs-Appellees, v. HYUNDAI MOTOR COMPANY, Hyundai Motor America, and Borman Motor Company, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

243 P.3d 440

149 N.M. 1

2010 -NMCA- 090

Art BUSTOS, as Personal Representative of the Estate of Marcos Leandro Baca, deceased, and Marcos Baca, Terri Baca, and Abel Baca, individually, Plaintiffs-Appellees,

v.HYUNDAI MOTOR COMPANY, Hyundai Motor America, and Borman Motor Company, Defendants-Appellants.

No. 28,240.

Court of Appeals of New Mexico.

June 17, 2010.

Certiorari Granted, No. 32,534, Oct. 18, 2010.

Gaddy Jaramillo, David J. Jaramillo, Maria E. Touchet, Albuquerque, NM, Watts Law Firm, L.L.P., James H. Hada, Robert J. Patterson, Corpus Christi, TX, for Appellees.

Prichard, Hawkins, McFarland & Young LLP, David M. Prichard, San Antonio, TX, Montgomery & Andrews, PA, Walter J. Melendres, Santa Fe, NM, Winston & Strawn LLP, Gene C. Schaerr, Geoffrey P. Eaton, Washington, DC, for Appellants.

Keleher & McLeod, PA, Thomas C. Bird, Albuquerque, NM, for Amicus Curiae The Product Liability Advisory Council, Inc.

Lewis and Roca LLP, Thomas P. Gulley, Albuquerque, NM, for Amicus Curiae Association of Commerce and Industry.

OPINION

BUSTAMANTE, Judge.

{1} Marcos Leandro Baca was killed in a rollover accident involving a Hyundai automobile. Mr. Baca's estate, parents, and brother (Plaintiffs) brought suit against Hyundai Motor Company, Hyundai Motor America, and Borman Motor Company (Defendants) in negligence, implied warranty, and strict products liability asserting that the roof structure of the car was defectively designed. The jury found in favor of Plaintiffs on all claims and awarded $4.2 million.

{2} Defendants appeal arguing that (1) the district court abused its discretion in admitting expert testimony as to the design defect and enhanced injury, (2) Plaintiffs failed to prove that a design defect existed, (3) Plaintiffs failed to prove the degree of injury enhancement resulting from the alleged design defect, and (4) the district court erred as a matter of law by failing to specifically instruct the jury that Plaintiffs were required to prove the feasibility of a reasonable alternative design which could have eliminated the alleged defect. We affirm the district court's entry of judgment on the jury verdict.

BACKGROUND

{3} The twenty-one-year-old Mr. Baca was riding in the right front passenger seat of a 2002 Hyundai Accent when its driver lost control, causing the vehicle to leave the roadway and roll over three and one-half times before coming to rest on its roof. When the driver lost control, the Accent was traveling at a speed of approximately sixty-four miles per hour, but the car had slowed down to between thirty-two and thirty-four miles per hour by the time it began to roll over.

{4} During the rollover, the roof over the passenger seat crushed downward and inward. The roof rail dropped down vertically to the top of the passenger seat headrest and horizontally such that approximately half of the headrest extended outside the plane of the side window. By the time the Accent came to rest, the A-pillar, which connects the front of the door frame along the windshield to the roof rail, had crushed 10.9 inches and the B-pillar, which connects the back of the door frame to the roof rail, had crushed 10.8 inches. The passenger door had also come open.

{5} With the vehicle upside down, Mr. Baca remained buckled into his safety belt in the passenger seat. Mr. Baca's head was outside the plane of the passenger side window and atop a CD changer, which had become dislodged from the vehicle during the rollover and was now lying on the ground immediately outside the passenger side window. The roof above the driver's side of the Accent was not as severely deformed, and the driver was able to walk away from the accident.

{6} The Office of the New Mexico Medical Examiner found that Mr. Baca's death was caused by positional asphyxia. He was inverted with his body located in such a way that the vehicle weighed down against his head and neck, and flexed his chin into his chest. According to witnesses, Mr. Baca was stuck in this position.

{7} Plaintiffs relied on the testimony of two expert witnesses to establish first, the existence of a design defect in the 2002 Hyundai Accent, and second, that the design defect caused the injury enhancement ofdeath. At trial, John Stilson, an automotive and safety consultant, testified on behalf of Plaintiffs. Mr. Stilson examined the subject vehicle and testified that, as a result of the roof crush in this accident, the survival space within the Accent was reduced to below what would be necessary for rollover protection.

{8} Joseph Burton, M.D., a forensic pathology and forensic medicine consultant, also testified on behalf of Plaintiffs. Like Mr. Stilson, Dr. Burton examined the subject vehicle. Dr. Burton explained that merely hanging upside down in the vehicle would not have caused Mr. Baca to asphyxiate. However, Mr. Baca's body was forced into compression by the deformation to the Accent's roof resulting in Mr. Baca's head being placed outside of the vehicle and on top of the CD changer. Mr. Baca's regular breathing was also impaired by compression of his rib cage that prevented his diaphragm from functioning properly. Mr. Burton's ultimate opinion was that Mr. Baca died from positional asphyxiation caused by "the condition the vehicle put his body in when it came to rest."

{9} On appeal, Defendants argue (1) that the testimony of Mr. Stilson and Dr. Burton should not have been admitted; (2) that even if it were properly admitted, it failed to carry Plaintiffs' burden of showing a design defect that caused an enhanced injury; and (3) even if it were sufficient to make such a showing, the jury was improperly instructed on what it was required to find. We address each argument in turn and affirm the judgment of the district court.

DISCUSSION

1. The District Court Did Not Abuse Its Discretion in Permitting the Expert Testimony of Mr. Stilson and Dr. Burton

{10} Defendants argue that the testimony of Plaintiffs' expert witnesses, Mr. Stilson and Dr. Burton, should have been excluded based on reliability considerations under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its New Mexico counterpart, State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). 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 NMRA requires three prerequisites for admission of expert testimony: (1) the expert must be qualified; (2) the scientific evidence must assist the trier of fact; and (3) the expert may only testify to "scientific, technical or other specialized knowledge." Alberico, 116 N.M. at 166, 861 P.2d at 202 (internal quotation marks and citation omitted). In addition, the Court cited favorably to Daubert for several non-determinative factors in applying Rule 11-702. Alberico, 116 N.M. at 166-67, 861 P.2d at 202.

{11} Here, Defendants do not challenge Mr. Stilson's or Dr. Burton's qualifications. Defendants' argument is that Mr. Stilson's expert testimony was not helpful to the jury and was unreliable because it was too generalized and not based on the specific facts of this case. Defendants' challenge to Dr. Burton relies entirely on the success of their challenge to Mr. Stilson's testimony: with Mr. Stilson's testimony excluded, they argue there would be no predicate showing of a design defect to support Dr. Burton's opinion as to causation.

{12} Plaintiffs point out that it is unclear whether Alberico applies to the testimony of Mr. Stilson and Dr. Burton because New Mexico courts have limited Alberico to expert witness testimony based on scientific knowledge. In the alternative, Plaintiffs argue that, even if Alberico does apply, the district court did not abuse its discretion in admitting these two expert witnesses. In order to fully address the issue, we briefly review New Mexico's law on the application of Alberico.

{13} The Alberico prerequisites for expert testimony are applied somewhat differently by New Mexico courts than by federal courts applying Daubert. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court clarified that its ruling in Daubert applied not only to expert testimony that was scientific in nature, but to all "technical" or "other specialized" matters within the scope of Rule 702.Kumho Tire Co., 526 U.S. at 146-47, 119 S.Ct. 1167. New Mexico has not incorporated the holding of Kumho Tire Co. into its law.

{14} In State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20, the New Mexico Supreme Court limited the requirements of Daubert/Alberico to testimony that requires scientific knowledge, stating that "application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training." Torres, 1999-NMSC-010, ¶ 43, 127 N.M. 20, 976 P.2d 20 (internal quotation marks and citation omitted). The language in Torres was adopted from Compton v. Subaru of America, Inc., 82 F.3d 1513, 1518 (10th Cir.1996), which was subsequently overruled by Kumho Tire Co. Even though Compton has been overruled, New Mexico has continued to recognize Compton's rationale-as adopted in Torres-that Alberico does not extend to expert testimony based on non-scientific knowledge. See Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 19, 134 N.M. 421, 77 P.3d 1014 (stating that in Torres "we limited the requirements of Daubert/Alberico to testimony that requires scientific knowledge"); State v. Lente, 2005-NMCA-111, ¶ 4, 138 N.M. 312, 119 P.3d 737 (recognizing that "New Mexico law requires only that the trial court establish the reliability of scientific knowledge, and does not apply the Daubert-Alberico standard to all expert testimony").

{15} Defendants submitted a pretrial motion and motions at the close of all evidence arguing that Mr. Stilson's and Dr. Burton's testimony should be excluded under the authority of Daube...