KILGORE v. FUJI HEAVY Indus. LTD

• Decision Date: 03 August 2010
• Docket Number: 750.,No. 31,31
• Citation: 148 N.M. 561,2010 NMSC 040,240 P.3d 648
• Parties: Donald E. KILGORE and Carole A. Kilgore, Plaintiffs-Petitioners, v. FUJI HEAVY INDUSTRIES LTD., Takata Corporation and Takata Seat Belts Inc., Defendants-Respondents.
• Court: New Mexico Supreme Court

148 N.M. 561

240 P.3d 648

2010 NMSC 040

Donald E. KILGORE and Carole A. Kilgore, Plaintiffs-Petitioners,

v.FUJI HEAVY INDUSTRIES LTD., Takata Corporation and Takata Seat Belts Inc., Defendants-Respondents.

No. 31,750.

Supreme Court of New Mexico.

Aug. 3, 2010.

COPYRIGHT MATERIAL OMITTED.

Comeau, Maldegen, Templeman & Indall, L.L.P., Michael R. Comeau, Wesley Grey Handy, Sharon Horndeski, Santa Fe, NM, Peters & Lister, P.C., Darrel Peters, Lathrup Village, MI, for Petitioners.

Bowman and Brooke, L.L.P., Thomas M. Klein, Phoenix, AZ, Rodey, Dickason, Sloan, Akin & Robb, P.A., Patrick M. Shay, Albuquerque, NM, for Respondents Fuji Heavy Industries Ltd. and Takata Corporation.

Bowman and Brooke, L.L.P., David R. Kelly, Minneapolis, MN, Atkinson, Thal & Baker, P.C., Douglas Arthur Baker, Albuquerque, NM, for Respondent Takata Seat Belts Inc.

OPINION

MAES, Justice.

{1} In this appeal, we reconsider and clarify the “presumption of prejudice” that attaches to extraneous juror communications. After reviewing New Mexico case law in light of United States Supreme Court precedent, we conclude that the party moving for a new trial based on extraneous juror communications bears the burden to prove that (1) material extraneous to the trial actually reached the jury, (2) the extraneous material relates to the case being tried, and (3) it is reasonably probable that the extraneous material affected the jury's verdict or a typical juror. We further conclude that a remand for an evidentiary hearing, rather than a new trial, typically is the appropriate remedy in these cases. Because the affidavits submitted by Donald and Carole Kilgore (Plaintiffs) were sufficient to establish that extraneous material related to the case actually reached one of the jurors in the case, we remand this case to the trial court for an evidentiary hearing in which Plaintiffs will have an opportunity to prove a reasonable probability of prejudice.

FACTS AND PROCEDURAL HISTORY

{2} On May 19, 2000, Mr. Kilgore was driving a 1998 Subaru Legacy Outback on Highway 84 near Tierra Amarilla, New Mexico.

His seven-year-old granddaughter, Emily Walters, was seated beside him in the passenger seat, and his wife, Mrs. Kilgore, was seated behind him in the backseat. Mr. Kilgore lost control of the vehicle, which rolled down an embankment and landed on its roof. Both Mr. Kilgore and Walters ended up hanging upside down suspended by their seat belts, but Mrs. Kilgore was found lying on the interior roof of the car, unrestrained. Mrs. Kilgore sustained serious and permanent physical injuries in the accident, which rendered her a ventilator-dependent quadriplegic.

{3} Plaintiffs sued Fuji Heavy Industries, the designer and manufacturer of the vehicle, and Takata Corporation and Takata Seat Belts, Inc., ¹ the designer and manufacturer of the vehicle's seat belt buckle system, for negligence, breach of warranty, product liability, unfair practices, and loss of consortium. Essentially, Plaintiffs claimed that the vehicle's seat belt buckle system had been designed, tested, and manufactured improperly, resulting in the risk of accidental, inadvertent, or unintentional unbuckling during a crash or rollover. The jury entered a special verdict in favor of Defendants, and the trial court rendered judgment accordingly.

{4} Plaintiffs subsequently filed a motion for a new trial, claiming, in relevant part, that

Plaintiffs were presumptively prejudiced during trial by juror misconduct, in that a member of the impaneled jury not only failed to disclose during voir dire that her brother is employed as a Subaru mechanic, but further personally obtained the advice of the owner of the Subaru repair garage as to whether seatbelts were prone to inadvertent unbuckling.

In support of their motion, Plaintiffs filed an affidavit by Gregory G. Scott, a paralegal employed by Plaintiffs' counsel. Scott averred that after the conclusion of the trial he contacted Juror Marie Millie Valdivia to inquire about the reasons for her verdict.

[Juror Valdivia] said that the [Plaintiffs] had definitely proved that the seat belt buckle could be easily opened with various body parts but there was not enough evidence that the buckle could open in real accidents and therefore she felt the buckle was not defective. [Juror Valdivia and Scott] talked for a few more minutes but she was reluctant to say anything further. She said that her life was very busy and that she did not want to be contacted any further about the case.

{5} Scott subsequently learned that Juror Valdivia's brother, Michael Lucero, worked for a Subaru repair shop, and that Juror Valdivia had engaged in a conversation with the owner of the shop, Michael Griego, in which Griego “told [Juror] Valdivia that he had never heard of a Subaru seat belt buckle opening in an accident.” Scott contacted Griego, who confirmed the conversation and completed an affidavit describing its contents. However, Scott made no further attempt to contact Juror Valdivia regarding the conversation because she “had told [him] that she did not want to be contacted any further about the case.”

{6} Griego's affidavit, which was submitted in support of Plaintiffs' motion for a new trial, provides as follows:

The affiant, Michael Griego, first being duly sworn deposes and says as follows:

1. My name is Michael Griego. I am an adult and I am competent to make this affidavit. The facts stated in this affidavit are true and are based upon my own personal knowledge.

2. I read an article in the newspaper about the trial in Santa Fe in which a woman was suing Subaru because she was paralyzed in a rollover accident because her seat belt came off. I believe the article was in September of this year.

3. I am the owner of Mike's Garage at 1501 5th St. Santa Fe, New Mexico. My shop only works on Subaru vehicles. Michael Lucero is an employee of my business.

4. Marie Millie Valdivia is Michael Lucero's sister.

5. Prior to my seeing the newspaper article about the Subaru trial, Ms. Valdivia and I had a conversation. She told me that she was a juror on the Subaru trial. I told her that I had never heard of any incident where a Subaru seat belt buckle had come open accidentally. I told her that I had never heard of that happening.

6. During the conversation, she said to me, at least twice, that she was not supposed to be talking to me about the case.

Plaintiffs argued that Scott's and Griego's affidavits “establish that [Juror] Valdivia received extraneous information” and that, under New Mexico law, “[t]he Court must therefore presume prejudice” and grant Plaintiffs' motion for a new trial.

{7} Plaintiffs requested a hearing on their motion for a new trial pursuant to the local rules of the first judicial district. See LR1-Form A (Request for Hearing). Additionally, in a cover memorandum accompanying their motion for a new trial, Plaintiffs alerted the trial court to “the possible need for an evidentiary hearing on the juror misconduct issue.” Approximately one month later Plaintiffs filed a second request for a hearing on their motion for a new trial.

{8} The trial court denied Plaintiffs' motion for a new trial without conducting an evidentiary hearing, finding that “[n]othing has been presented to the Court in the [m]otion which convinces the Court that a new trial should be granted.” Plaintiffs appealed from the judgment of the trial court to the Court of Appeals, which determined that the affidavits submitted by Plaintiffs were insufficient to raise a presumption of prejudice under New Mexico law. Kilgore v. Fuji Heavy Indus., Ltd., 2009-NMCA-078, ¶ 24, 146 N.M. 698, 213 P.3d 1127. The Court noted that Griego's affidavit was insufficient to establish juror misconduct, because the facts set forth in the affidavit failed to demonstrate that Juror Valdivia initiated a conversation “with another person in an attempt to obtain information relevant to the case contrary to the instructions of the court.” Id. ¶ 12. The Court further noted that Griego's affidavit was insufficient to establish jury tampering, because there was no evidence to indicate that Griego purposefully initiated contact with Juror Valdivia in an attempt to influence her vote. Id. ¶ 12. Additionally, the Court observed that “[Griego's] statement seems almost inconsequential in comparison to the substantial testimony at trial, including expert testimony, relating to whether the buckle was negligently designed or was defective and how the buckle may have opened.” Id. ¶ 28. Accordingly, the Court held that Plaintiffs had failed to “sustain their burden to preliminarily show there was a reasonable likelihood that the information would have an effect on the verdict or even on a typical juror” and affirmed the trial court's denial of Plaintiff's motion for a new trial. Id. ¶ 31.

{9} Because Plaintiffs had failed to make the required preliminary showing, the Court further held that “the [trial] court was not required to conduct an evidentiary hearing or to otherwise investigate further.” Id. ¶ 32. Additionally, the Court concluded that Plaintiffs had failed to request an evidentiary hearing “with any degree of specificity” sufficient to “alert the [trial] court that Plaintiffs wanted an evidentiary hearing specifically on the juror-misconduct issue.” Id. ¶ 33, 35. The Court recognized that “the [trial] court has a duty in the appropriate case to conduct such an evidentiary hearing,” but was “not persuaded that this is the appropriate case or that the court abused its discretion when it did not schedule an evidentiary hearing or otherwise investigate further on the juror-misconduct issue.” Id. ¶ 36.

{10} We granted Plaintiffs' petition for writ of certiorari pursuant to NMSA 1978, Section 34-5-14(B) (1972) and Rule 12-502 NMRA, to determine whether the Court of Appeals properly applied “the ‘presumption of prejudice’ attaching to improper juror communications established by this Court's precedents and ...