Kilgore v. Fuji Heavy Industries Ltd.
| Decision Date | 29 May 2009 |
| Docket Number | No. 27,470.,27,470. |
| Citation | 213 P.3d 1127,2009 NMCA 078 |
| Parties | Donald E. KILGORE and Carole A. Kilgore, Plaintiffs-Appellants, v. FUJI HEAVY INDUSTRIES LTD., Takata Corporation, and Takata Seat Belts Inc., Defendants-Appellees, and Subaru of America, Inc., Defendant. |
| Court | Court of Appeals of New Mexico |
Bowman and Brooke LLP, Thomas M. Klein, Phoenix, AZ, Rodey Dickason Sloan Akin & Robb, PA, Patrick M. Shay, Jeffrey M. Croasdell, Albuquerque, NM, for Appellees, Fuji Heavy Industries Ltd. and Takata Corporation.
Bowman and Brooke LLP, David R. Kelly, Minneapolis, MN, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Martha G. Brown, Albuquerque, NM, for Appellee, Takata Seat Belts Inc.
{1} This case centers on a defective seatbelt buckle claim in a vehicle rollover accident. Plaintiff Carole Kilgore was seriously injured. Plaintiff Donald Kilgore, her husband, was driving. The trial resulted in a defense verdict. Plaintiffs tried this case on the theory that the buckle design created a risk of accidental or inadvertent release, recognizing that the precise identification of what depressed the seatbelt buckle release button could never be known with certainty.
{2} More specifically, Plaintiffs sought to prove that the release button "was needlessly and dangerously exposed and demonstrably susceptible to unintended contact, opening the buckle and releasing the [seatbelt]." Their approach was to show that "such inadvertent contact could come from a hand, an elbow, or a variety of other objects loose in the passenger compartment of the car, which could have accidentally contacted and depressed the exposed button during a rollover collision." Plaintiffs' theories of recovery presented to the jury were negligence and product liability.
{3} Plaintiffs moved for a new trial. The district court denied the motion without a hearing. Plaintiffs assert reversible error in denying their motion for a new trial based on claims of juror misconduct, improper comments in Defendants' opening statement, and two erroneous evidentiary rulings. We hold these claims do not require a new trial. On juror misconduct, we hold Plaintiffs failed to meet the preliminary requirement that they show there was a reasonable likelihood that extraneous information a juror received would have an effect on the verdict or on a typical juror and thus that there was a reasonable possibility that the information prejudiced Plaintiffs. We further hold that defense counsel's opening statement comments do not warrant a new trial. We also hold that the district court did not abuse its discretion in excluding evidence of other incidents or in allowing a defense expert's deposition testimony that the buckle in question could arguably meet certain test requirements. We therefore affirm the defense verdict.
{4} The record proper in this case consists of thirty-two volumes consuming 5366 pages. There are thirty-two separate transcripts of various proceedings. Experts and other witnesses testified on the issues of negligence, product defect, and when, during the rollover, Mrs. Kilgore may have suffered the permanent spinal cord injury for which she seeks damages. Trial before a panel of twelve jurors took about three weeks. The jury's verdict was unanimous. Nothing presented to us in the briefs indicates that this was not a fully and professionally tried case.
{5} Mr. Kilgore was driving a 1998 Subaru Legacy Outback wagon at the time of the accident. Mrs. Kilgore was in the back seat behind Mr. Kilgore, and their seven-year-old granddaughter was in the front passenger seat. All were wearing their seatbelts. The car went out of control, rolled over, and landed upside down at the bottom of an embankment. Mr. Kilgore and his granddaughter remained belted and were hanging upside down, suspended in their seatbelts. They did not suffer serious injuries. Mrs. Kilgore was found lying on the roof, facing up toward the sky, and was not suspended by her seatbelt. No direct evidence was presented as to how Mrs. Kilgore came to be unbelted.
{6} Plaintiffs sued Fuji Heavy Industries Ltd. (Fuji), which designed the car; and Takata Corporation (Takata) and Takata Seatbelts, Inc. (Takata Seatbelts), which designed and manufactured, respectively, the car's seatbelt system. Plaintiffs contended that the Takata AB buckle in the Subaru's seatbelt system was negligently designed, tested, and selected and was defective because it accidentally or inadvertently unlatched during the rollover, resulting in a permanent spinal cord injury that left Mrs. Kilgore a ventilator-dependent quadriplegic. Obvious questions for the jury were at what point did the buckle release and what likely caused it to release. We refer to Fuji, Takata, and Takata Seatbelts, together, as Defendants.
{7} The jury was instructed that to establish negligence on the part of Defendants, Plaintiffs had the burden of proving that Fuji failed to exercise ordinary care in designing, testing, or selecting the seatbelt system and that Takata failed to exercise ordinary care in designing and testing the seatbelt system. The jury was also instructed that, to establish a claim of defective product on the part of Defendants, Plaintiffs had the burden of proving that the seatbelt system created an unreasonable risk of injury to Mrs. Kilgore and that the seatbelt system was defective when it reached the user or consumer.
{8} The jury rendered a special verdict in favor of Defendants. The jury specifically found that Fuji was not negligent in designing, testing, or selecting the seatbelt system and that Takata was not negligent in designing or testing the seatbelt system. The jury also specifically found that no negligence of Fuji or Takata was a cause of Mrs. Kilgore's spinal cord injury and related damages. In addition, the jury specifically found that the seatbelt system in Plaintiffs' car that was supplied by Defendants was not defective. The verdict was rendered on September 29, 2006, and the court entered a final judgment on the verdict and in Defendants' favor on December 11, 2006.
{9} A legal assistant for Plaintiffs' counsel conducted an investigation into the jury's verdict from October through December 2006 that discovered a juror had received extraneous information. Based on this discovery and also on alleged prejudicial error in evidentiary rulings, Plaintiffs filed a motion for a new trial on December 22, 2006. Accompanying the motion was Plaintiffs' thirty-six page memorandum containing twenty-six exhibits. Plaintiffs appeal the court's denial of that motion.
{10} Through the post-verdict investigation, Plaintiffs learned that one juror, likely early in the trial, spoke to the owner of a Subaru-specific repair shop, Michael Griego (the owner), where the juror's brother worked as a mechanic. Plaintiffs then presented to the court an affidavit of the owner dated December 12, 2006. In its entirety, the affidavit states:
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 [seatbelt] came off. I believe the article was in September of [2006].
3. I am the owner of Mike's Garage at 1501 5[th] 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 I had never heard of any incident where a Subaru [seatbelt] 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' motion for a new trial was in part based on their view that the juror engaged in misconduct as shown by the conversation described in the owner's affidavit.
{11} "The essence of cases involving juror . . . misconduct . . . is whether the circumstance[s] unfairly affected the jury's deliberative process and resulted in an unfair jury." State v. Mann, 2002-NMSC-001, ¶ 20, 131 N.M. 459, 39 P.3d 124. We will not overturn a district court's denial of a motion for a new trial based on juror misconduct unless the court abused its discretion. Id. ¶ 17. An abuse of discretion in this context occurs if the court's ruling is arbitrary, capricious, or beyond reason. Id. The district court is in the best position to decide whether to grant a new trial. Id.
{12} The owner's affidavit constitutes the sole evidence Plaintiffs presented to the court as evidence of the juror's conduct relating to the receipt of extraneous information. The circumstances set out in the owner's affidavit are not, in our view, to be characterized as "jury tampering," as occurs when a person purposefully initiates contact with a juror and then says something to influence the juror. See id. ¶¶ 20-21 (). Nor does this case involve "juror bias." See id. ¶¶ 20-21, 25-26. Further, the contact here was not equal to unauthorized social visits with court personnel or lawyers involved in the case. Compare Gonzales v. Surgidev Corp., 120 N.M. 133, 148, 899 P.2d 576, 591 (1995) (...
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