                                                    I attest to the accuracy and
                                                     integrity of this document
                                                       New Mexico Compilation
                                                     Commission, Santa Fe, NM
                                                    '00'05- 14:26:29 2013.01.16
Certiorari Granted, December 26, 2012, No. 33,884

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-009

Filing Date: October 2, 2012

Docket No. 29,502

CONCEPCION and ROSARIO ACOSTA,
et al.,

       Plaintiffs/Intervenors-Appellants,

v.

SHELL WESTERN EXPLORATION
and PRODUCTION, INC.
and SHELL OIL COMPANY,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Freddie J. Romero, District Judge

Girardi & Keese
David R. Lira
Los Angeles, CA

Niddrie, Fish & Buchanan
Martin N. Buchanan
San Diego, CA

Tucker Law Firm, P.C.
Steven L. Tucker
Santa Fe, NM

Heidel, Samberson, Newell, Cox & McMahon
Michael Newell
Lovington, NM

for Appellants


                                            1
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Jocelyn C. Drennan
Albuquerque, NM

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Marte D. Lightstone
Albuquerque, NM

Hayes & Boone, L.L.P.
Michael J. Mazzone
Houston, Texas

for Appellees

                                         OPINION

GARCIA, Judge.

{1}     In this toxic tort case, the district court granted Defendants’ motion to exclude the
opinion testimony of Plaintiffs’ expert witness as to causation for the Plaintiffs’ lupus and
autoimmune medical conditions. As a result, the district court granted partial summary
judgment in favor of Defendants on Plaintiffs’ claims relating to their lupus and other
autoimmune disorders. Plaintiffs’ remaining claims that relied upon other evidence and
expert testimony survived summary judgment and were allowed to proceed to trial. After
the jury returned a verdict in favor of Defendants on Plaintiffs’ remaining claims, Plaintiffs
filed a motion for new trial based on juror misconduct and juror bias. The district court
denied the motion for a new trial and entered a final judgment in favor of Defendants. This
appeal followed. We affirm.

BACKGROUND

{2}     This is an action brought by over 200 individuals asserting either personal injury
claims, property damage claims, or both, against Shell Western Exploration and Production,
Inc. and Shell Oil Company, (collectively, Shell). Plaintiffs allege that Shell purposely or
negligently deposited and left various toxic petrochemicals in the ground where the Westgate
neighborhood (Westgate) is presently located in Hobbs, New Mexico. The nine named
Plaintiffs in this case were selected for an initial trial. Plaintiffs asserted claims for
negligence, strict liability, nuisance, and trespass.

{3}    Plaintiffs resided in Westgate at varying times and for varying lengths of time over
more than twenty years. Westgate is situated within an active oilfield. Oil and gas
operations had been conducted in the area known as the Grimes lease since the 1920’s, and
development of the area for housing began in the 1970’s. From 1946 to 1993, Shell

                                              2
maintained a tank battery on the Grimes lease and used the tank battery to store crude oil and
saltwater produced from wells on the lease. Just east of the tank battery, Shell used an
unlined storage pit (the Tasker pit) to dispose of oilfield waste. The Grimes battery was
dismantled and removed after it was decommissioned. In 1997, the soil where the battery
tanks previously stood was found to be contaminated with hydrocarbons. In addition to the
soil contamination, hydrocarbon contamination was found in the water table.

{4}     Not long after contamination was detected at the former Grimes battery site, a
developer constructing new houses in Westgate discovered a layer of asphalt-like
hydrocarbons beneath the ground. It extended across the properties on both sides of Tasker
Road. Additional hydrocarbons were found beneath the asphaltic layer. An investigation
revealed that the contaminated land, now known as Tasker Road and the adjacent properties,
used to be the Tasker pit.

DISCUSSION

{5}     This was a complex toxic tort case that involved an extraordinary volume of briefs,
affidavits, expert witness reports, case studies, and scientific information. The scientific
aspects of this case were critical to this litigation and were addressed at several stages during
the pretrial process. This pretrial analysis required the district court to devote an extensive
amount of time and attention to complex scientific evidence, including numerous research
studies addressing potentially toxic chemicals. The district court did an admirable job
controlling and managing the numerous scientific aspects of the case before trial was
convened. These efforts resulted in several dispositive rulings prior to trial. In their first
argument on appeal, Plaintiffs make two challenges: first to the district court’s pretrial
rulings excluding Dr. Dahlgren’s causation opinions as well as his epidemiological study on
lupus and other immune conditions, and second to the resulting grant of summary judgment
on these claims. We begin with the first argument. We will also address Plaintiffs’ second
argument regarding alleged jury misconduct. The additional facts and procedural history
pertinent to each argument will be included in the appropriate discussion below.

I.      The Partial Grant of Summary Judgment

{6}    The initial issue on appeal is whether Shell was entitled to partial summary judgment
on Plaintiffs’ claims relating to lupus and other autoimmune disorders. In deciding this
question, we must determine whether the district court abused its discretion when it excluded
Dr. Dahlgren’s expert opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and its New Mexico counterpart, State v. Alberico, 116 N.M. 156, 861 P.2d
192 (1993).

{7}     Plaintiffs alleged that their exposure to contamination from the Tasker pit either
caused or aggravated their lupus and other autoimmune medical conditions, as well as their
respiratory, neurological, and psychiatric injuries. Plaintiffs sought to have Dr. Dahlgren
testify as their expert witness regarding causation. Plaintiffs could not establish a prima

                                               3
facie case regarding claims that involved lupus and other autoimmune medical conditions
without Dr. Dahlgren’s testimony. Of particular import to Plaintiffs’ appeal, Dr. Dahlgren
was prepared to testify that, to a reasonable degree of medical probability, the various
autoimmune conditions Plaintiffs suffered, including lupus, were caused by Plaintiffs’
exposure to a mixture of three specific chemicals found in crude oil: pristane, benzene, and
mercury. Dr. Dahlgren based his opinion, in part, on a cross-sectional epidemiologic study
that he performed.

{8}     In Dr. Dahlgren’s study, he relied on blood pristane data taken from the plaintiff
group and a review of their medical records. He compared the plaintiff group data with
similar data he collected from an unexposed group of California residents. The district court
excluded this blood pristane data as scientifically unreliable. The district court also
excluded, as scientifically unreliable, Dr. Dahlgren’s calculated “minimum risk” levels for
hydrogen sulfide and benzene and related cumulative exposure estimates. These early
rulings were important to the nature of Plaintiffs’ chemical mixture theory for its lupus and
other autoimmune disorder claims and laid the foundation for subsequent summary judgment
rulings by the district court. On appeal, Plaintiffs do not challenge the early rulings
regarding the blood pristane data and minimum risk level estimates related to cumulative
exposure.

{9}     Shortly before trial commenced, Shell filed numerous motions in limine and motions
for summary judgment regarding all of Plaintiffs’ injury claims against Shell. Shell
challenged the Plaintiffs’ expert witness testimony on every claimed injury, including their
claims for respiratory, neurological and psychiatric injuries. As a part of the motions in
limine, Shell moved to exclude certain opinion testimony from Dr. Dahlgren as well as his
epidemiologic study. Shell argued that Dr. Dahlgren’s causation opinions relating to lupus
and other autoimmune disorders were scientifically unreliable and lacked sufficient scientific
support because his opinions relied solely upon his own epidemiologic study. Shell asserted
that Plaintiffs had to prove both general and specific causation and that Dr. Dahlgren was
their only general causation expert. Shell argued that the cross-sectional design of Dr.
Dahlgren’s own epidemiologic study made it non-probative of causation. Shell supported
its motions with the affidavit of its own epidemiology expert and by referencing the Federal
Judicial Center, Reference Manual on Scientific Evidence, Reference Guide on Medical
Testimony (2d. ed. 2000) (the Federal Reference Manual). Shell further argued that the mice
studies that Dr. Dahlgren relied upon did not support his human causation opinions because
the requisite extrapolation analysis was not done. Dr. Dahlgren confirmed that there were
no other epidemiologic studies showing that the exposure to the specific chemical mixture
at issue in this case would cause lupus or other autoimmune disorders.

{10} The scientific studies relied upon by Plaintiffs to establish their claims for
respiratory, neurological and psychiatric injuries did not include Dr. Dahlgren’s own
epidemiologic study. These injuries relied upon a plethora of other scientific evidence and
studies involving exposure to petrochemicals generally, as well as exposure to specific
chemicals and component elements found in crude oil. In its summary judgment pleadings,

                                              4
Shell argued that the district court should apply the stringent federal standard that has
recently developed for determining whether expert testimony will be admitted to establish
causation. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (extending
Daubert’s gatekeeping function beyond scientific evidence to encompass all expert
testimony); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43,146 (1997) (applying Daubert
to expert reasoning, not just general methodology, and clarifying that the district judge’s
decision whether to admit particular scientific evidence was to be reviewed only for an abuse
of discretion).

{11} Plaintiffs responded with various exhibits and rebuttal affidavits that primarily
addressed the methodology of Dr. Dahlgren’s epidemiologic study. In his rebuttal affidavit,
Dr. Dahlgren provided detailed responses to rebut Shell’s assertions that his causation
testimony was unreliable and that the methodology used in his epidemiologic study was
flawed. He also asserted for the first time that he had mislabeled his epidemiologic study
as cross-sectional and that the study did not suffer from the usual causal limitations of a
cross-sectional analysis. Dr. Dahlgren asserted that his study was more appropriately labeled
as a case-control study or a retrospective cohort study. Plaintiffs argued that Dr. Dahlgren’s
testimony should be admissible under our case law for expert testimony that has developed
under Alberico and considered less stringent than recent federal precedent. See Lee v.
Martinez, 2004-NMSC-027, ¶ 48, 136 N.M. 166, 96 P.3d 291 (resolving doubts about the
admissibility of scientific evidence in favor of admission and explaining that, where
scientific evidence is questionable, “the remedy is cross-examination, presentation of
rebuttal evidence, and argumentation”); State v. Lente, 2005-NMCA-111, ¶ 4, 138 N.M. 312,
119 P.3d 737 (“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.”).

{12} The district court initially announced its ruling on the motions in limine and motions
for summary judgment by letter. The court found that issues concerning the reliability of Dr.
Dahlgren’s methodology in designing and conducting his study would primarily go to weight
and not to the admissibility of the study. As a result, the methodology utilized in Dr.
Dahlgren’s study was not the basis for granting summary judgment. Using the Alberico
standard to analyze the scientific evidence, the district court focused on whether there was
a valid scientific link between the chemical mixture theory propounded by Plaintiffs to
establish its claims regarding lupus and other autoimmune disorders and Dr. Dahlgren’s
testimony regarding general causation. The district court explained that Dr. Dahlgren’s
cross-sectional study did not comply with the Federal Reference Manual requirements and
standing alone it was not scientifically sufficient to support Plaintiffs’ claims of a causal
relationship between the specific chemical mixture and lupus. The court explained that a
cross-sectional study would only be relevant if it was supported by other general causation
evidence. The court also explained that despite Dr. Dahlgren’s testimony regarding the
animal studies, they were too dissimilar factually from the present case and, therefore, they
were not relevant. The district court thoroughly examined the other evidence in the record
which could serve as a possible foundation for Dr. Dahlgren’s general causation testimony.

                                              5
After an extensive review of the evidence, the district court ultimately found that none of the
other cited studies made the necessary connection between the specific hydrocarbon mixture
and lupus or other autoimmune disorders. As a result, the district court concluded that the
scientific evidence available was insufficient to establish a proper scientific basis for Dr.
Dahlgren to testify as to causation for Plaintiffs’ claims related to lupus or other autoimmune
disorders. The court then granted partial summary judgment in favor of Shell on Plaintiffs’
claims related to lupus and other autoimmune disorders. However, the district court denied
Shell’s numerous other motions in limine and motions for summary judgment regarding the
remainder of Plaintiffs’ claims. Plaintiffs’ other claims alleging respiratory, neurological,
and psychiatric injuries, as well as property damage claims, proceeded to trial.

{13} To determine whether the district court’s summary judgment decision was proper we
shall address: (A) proof of causation in a toxic tort case, (B) Rule 11-702 NMRA and the
application of Daubert/Alberico under New Mexico law, (C) our standard of review of a
district court order excluding expert witness testimony under Daubert/Alberico, and (D) the
district court orders excluding Dr. Dahlgren’s expert opinions regarding the specific
chemical mixture theory as it relates to lupus and other autoimmune disorders.

A.      Proof of Causation in a Toxic Tort Case

{14} To establish causation in a toxic tort case, expert testimony is required to show both
“general causation” and “specific causation.”             Andrews v. U.S. Steel Corp.,
2011-NMCA-032, ¶ 9, 149 N.M. 461, 250 P.3d 887 (“Scientific knowledge of the harmful
level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such
quantities, are minimal facts necessary to sustain the plaintiffs’ burden in a toxic tort case.”
(internal quotation marks and citation omitted)). “General causation is whether a substance
is capable of causing a particular injury or condition in the general population and specific
causation is whether a substance caused a particular individual’s injury.” Id. (internal
quotation marks and citation omitted); see also Federal Reference Manual at 481, 483
(stating that “[g]eneral causation is established by demonstrating (usually by reference to a
scientific publication) that exposure to the substance in question causes (or is capable of
causing) disease” and that “[s]pecific, or individual, causation is established by
demonstrating that a given exposure is the cause of an individual’s disease”).

{15} In this case, general causation involves whether and at what level the specific
petrochemical mixture at issue—pristane, benzene, and mercury—is capable of causing
lupus and the varied autoimmune disorders. Specific causation involves whether the
petrochemical mixture did in fact cause the varied autoimmune disorders suffered by
Plaintiffs.

B.      Rule 11-702 and the Application of Daubert/Alberico

{16} 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

                                               6
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). The burden is on the party
offering the evidence to satisfy these requirements. Andrews, 2011-NMCA-032, ¶ 11. The
two prerequisites at issue in this case are whether Dr. Dahlgren’s testimony would assist the
trier of fact, and whether Dr. Dahlgren’s opinions are reliable. See State v. Fuentes,
2010-NMCA-027, ¶ 23, 147 N.M. 761, 228 P.3d 1181 (stating that the reliability
requirement for the admission of scientific evidence under Daubert implicates the third
prerequisite), cert. denied, 2010-NMCERT-002, 147 N.M. 704, 228 P.3d 488.

{17} Where essential elements of Plaintiffs’ case are entirely dependent upon expert
testimony, the trial judge has a duty to “ensure that an expert’s testimony rests on both a
reliable foundation and is relevant to the task at hand so that speculative and unfounded
opinions do not reach the jury.” Parkhill v. Alderman-Cave Milling & Grain Co. of N.M.,
2010-NMCA-110, ¶ 12, 149 N.M. 140, 245 P.3d 585, cert. granted sub nom. Joey P. v.
Alderman-Cave Milling, 2010-NMCERT-012, 150 N.M. 493, 263 P.3d 270. This is because
“[s]cientific evidence can only assist the trier of fact if it is grounded in valid, objective
science and is reliable enough to prove what it purports to prove.” Lee, 2004-NMSC-027,
¶ 15 (internal quotation marks and citation omitted).

{18} To be relevant, expert testimony should help the trier of fact understand the evidence
or help determine a disputed issue in the case. See, e.g., Zia Trust, Inc. v. Aragon,
2011-NMCA-076, ¶ 19, 150 N.M. 354, 258 P.3d 1146 (“To be relevant, expert testimony
must fit the facts of the case and prove what it purports to prove.” (alteration, internal
quotation marks, and citation omitted)), cert. denied, 2011-NMCERT-006, 150 N.M. 763,
266 P.3d. 632. Specific to the issue of relevance, the question is whether the scientific
evidence presented by Dr. Dahlgren was sufficient to show whether and at what levels the
petrochemical mixture of pristane, benzene, and mercury would cause lupus or other
autoimmune disorders. Reliability, on the other hand, requires that the testimony or
evidence be grounded in established scientific principles or methods. Andrews,
2011-NMCA-032, ¶ 13. Specific to the issue of reliability, the question was whether the
studies presented by Dr. Dahlgren were grounded in objective science and reliable enough
to be accepted within the scientific community.

C.      Standard of Review

{19} The determination of the relevance and reliability, and thus admissibility, of scientific
testimony “lies in the discretion of the district court.” Zia Trust, 2011-NMCA-076, ¶ 14;
see also Alberico, 116 N.M. at 169, 861 P.2d at 205 (stating that we review a district court’s
admission or exclusion of expert testimony for abuse of discretion). “An abuse of discretion
requires this Court to conclude that the district court’s ruling is clearly contrary to the logical
conclusions demanded by the facts and circumstances of the case.” Zia Trust,
2011-NMCA-076, ¶ 14 (internal quotation marks and citation omitted). “An abuse of

                                                7
discretion standard of review, however, is not tantamount to rubber-stamping the [district]
judge’s decision.” Alberico, 116 N.M. at 170, 861 P.2d at 206. Appellate courts should
conduct a meaningful analysis of the record below to “ensure that the [district] judge’s
decision was in accordance with the Rules of Evidence and the evidence in the case.” Id.

D.     Dr. Dahlgren’s Expert Opinion

{20} The opinion testimony from Dr. Dahlgren was proffered by Plaintiffs to establish that
at certain measurable levels a mixture of pristane, benzene, and mercury, three specific
chemicals found in crude oil, is capable of causing or contributing to lupus and other
autoimmune disorders. In fulfilling its function to analyze the scientific evidence, the
district court specifically chose not to address whether Dr. Dahlgren’s methodology was
reliable. Instead, the court excluded Dr. Dahlgren’s epidemiologic study and his opinion
testimony on the basis of relevance. It explained, “[d]isregarding the questions of invalid
data [and] unreliable methodology[,] . . . the real questions are: 1) What are the conclusions
of the study? 2) Is it relevant to a matter at issue? and 3) would it help the jury?” Because
the district court’s Rule 11-702 decision was premised on the issue of relevance rather than
reliability, our analysis will only focus on the issue of relevancy.

{21} Plaintiffs argue on appeal that the district court abused its discretion in excluding Dr.
Dahlgren’s testimony because the basis for exclusion went to the weight of his testimony,
not its admissibility. We disagree. The district court found that the underlying scientific
data was insufficient to establish the necessary causal nexus between the specific chemical
mixture and lupus or other autoimmune disorders. Dr. Dahlgren relied on his own
epidemiologic study and a variety of other animal and human studies to form his opinion as
to general causation. We shall address the relevance of each foundational basis of Dr.
Dahlgren’s opinion.

1.     Dr. Dahlgren’s Own Study

{22} Dr. Dahlgren based his general causation opinion in part on his own epidemiologic
study. In performing his study, Dr. Dahlgren collected data from the plaintiff group through
questionnaires and blood samples. He collected similar data from an unexposed group of
California residents. He compiled the data and labeled his compilation as a community
comparison cross-sectional study. The study concluded that there was a higher prevalence
of a number of conditions, from respiratory complaints to lupus, in the exposed group. As
a result, the study opined that environmental toxins, specifically pristane and mercury, may
induce lupus. The study also specified that “[f]urther research is needed to determine the
mechanism of effect for each of the suspected causal exposures and to assess possible
synergy between exposures.” As a result, Dr. Dahlgren’s study was not designed to
determine whether and at what levels the petrochemical mixture of pristane, benzene, and
mercury would cause lupus or autoimmune disorders. It simply compared the differences
in the reported incidence of certain medical ailments between two geographically specific
community groups.

                                              8
{23} Plaintiffs argue that Dr. Dahlgren’s methodology was a reliable basis to determine
general causation and the district court abused its discretion by excluding the study. But the
district court did not exclude the study solely because it was labeled as a “cross-sectional
study[,]” as Plaintiffs’ claim. Rather, our review of the record reveals that the district court
excluded the study because, regardless of the reliability of the study’s underlying
methodology, Dr. Dahlgren’s study itself fails to establish the necessary nexus between the
underlying data and Dr. Dahlgren’s opinions regarding causation. The district court
explained that the study “does not fit” any disputed issue in the case because the data in the
study “may not even show an association and it certainly fails to bridge the gap from
association to causation.” As such, we need not address Plaintiffs’ numerous arguments
regarding the reliability of Dr. Dahlgren’s underlying methodology. Instead we must look
at whether the determination of a potential association made by Dr. Dahlgren’s study is
appropriate to establish the necessary scientific link to his causation conclusion.

{24} Plaintiffs argue that this approach improperly focuses on Dr. Dahlgren’s conclusions.
See Torres, 1999-NMSC-010, ¶ 34 (“The focus must be solely on principles and
methodology, not on the conclusions that they generate.” (alteration, internal quotation
marks, and citation omitted)); Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999)
(explaining that a district court may “not exclude [expert] testimony simply because the
conclusion was ‘novel’ if the methodology and the application of the methodology were
reliable”). We disagree. “[N]othing in . . . Daubert . . . requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of the expert. A
court may conclude that there is simply too great an analytical gap between the data and the
opinion proffered.” Joiner, 522 U.S. at 146 (citing Turpin v. Merrell Dow Pharm., Inc., 959
F.2d 1349, 1360 (6th Cir. 1992)). “The analytical gap between the evidence presented and
the inferences to be drawn on the ultimate issue of [causation] is too wide. Under such
circumstances, a jury should not be asked to speculate on the issue of causation.” Turpin,
959 F.2d at 1360-61. It is this missing link between that factual data and Dr. Dahlgren’s
conclusion that was being addressed by the district court. Nothing in his study stated
whether and at what levels this petrochemical mixture of pristane, benzene, and mercury
would cause lupus or other autoimmune disorders.

{25} While it is true that epidemiologic studies are generally used as proof of causation,
not all epidemiologic studies can establish causation. See Joiner, 522 U.S. at 146-47
(upholding district court’s conclusion that four epidemiologic studies on which respondent
relied were not sufficient to support experts’ opinions regarding causation). In this appeal,
Plaintiffs go to great lengths to explain how Dr. Dahlgren’s methodology overcomes the
usual limitations of cross-sectional analysis in determining a casual link. See Federal
Reference Manual at 339 (“[C]ross-sectional studies are rarely useful in identifying toxic
agents.”). But this argument does nothing to dispel the concern identified in this case that
at the time the study was executed and conceived it was not intended to establish the
necessary causal link to address general causation. The study itself explains that “[t]his is
a community comparison study that examines persons living in a subdivision exposed . . .
and compares their health status and questionnaire responses to those living in [an

                                               9
unexposed subdivision.]”

{26} Finally, it is significant that at the time the district court was evaluating the study’s
relevance, Plaintiffs argued that the “epidemiologic[] study was not intended to prove
causation but was conducted to merely compare the health status of two different
populations.” Without a more concrete basis to support the causal link between the specific
chemical mixture and these health conditions, Dr. Dahlgren’s study is only relevant to show
a generally higher incidence of certain medical disorders in two community groups but is
insufficient to establish a general causation link to lupus and other autoimmune disorders.
See State v. Downey, 2008-NMSC-061, ¶¶ 30, 32, 145 N.M. 232, 195 P.3d 1244. As a
result, Dr. Dahlgren’s epidemiologic study alone could not establish a causal relationship
because it did not address whether the specific petrochemical mixture in this case would
cause lupus and the other autoimmune disorders. In light of these factors, we conclude that
the district court did not abuse its discretion when it ruled that Dr. Dahlgren’s study failed
to meet the Daubert/Alberico prerequisites for an expert opinion on causation.

2.      Totality of Dr. Dahlgren’s Evidentiary Basis for His Causation Conclusion

{27} Although the district court found that Dr. Dahlgren’s study, standing alone, was not
sufficient to establish general causation, it explained that the study might still be helpful to
the jury’s determination. The district court explained that the study might be still be relevant
if the totality of the other scientific evidence bridges the analytical gap from association to
causation for lupus and autoimmune disorders. See Joiner v.Gen. Elec. Co., 78 F.3d 524,
532 (11th Cir. 1996), rev’d on other grounds by 522 U.S. at 146-47 (“Opinions of any kind
are derived from individual pieces of evidence, each of which by itself might not be
conclusive, but when viewed in their entirety are the building blocks of a perfectly
reasonable conclusion, one reliable enough to be submitted to a jury along with the tests and
criticisms cross-examination and contrary evidence would supply.”). After examining the
totality of the other scientific evidence to support an opinion and conclusion that this specific
petrochemical mixture can generally cause lupus and other autoimmune disorders, the
district court found that there was still insufficient evidence to establish the necessary link.

{28} Dr. Dahlgren had based his general causation opinion on additional animal studies
involving various species. The district court specifically addressed a mouse study that
involved injecting mice with a high dose of pure alkane pristane and concluded that the facts
of this case were sufficiently dissimilar to the animal study. In the study, the mice injected
with pristane showed signs of plasmacytosis in as little as three days. Another animal study
discussed by Dr. Dahlgren was a rat study involving injections of pristane. In the rat study,
the pristane injections induced arthritis. Similarly, Plaintiffs rely on another mouse study
conducted by Dr. Yang. However, the results of that study were not identical to human
cases, and Dr. Dahlgren admitted that, in those cases, “the route of exposure in the mouse
may make a difference.” Plaintiffs’ brief in chief focuses on the reliability of mouse studies
for Dr. Dahlgren’s opinion and the fact that mouse studies can be a scientifically valid model
for human lupus. But the district court did not find that animal studies were unreliable to

                                               10
prove causation, instead it explained that the specific studies per se relied on by Dr.
Dahlgren did not fit the facts of this case.

{29} The district court previously excluded, as unreliable, the blood pristane analysis of
the Westgate population prepared by Dr. Dahlgren for his epidemiologic study. Aside from
the problems relating to the dosage in the animal study that involved pristane being injected
directly into the bloodstream of mice, the study was irrelevant to the facts of this case
without any evidence of the level of pristane in the exposed population’s bloodstream. See
Valentine v. PPG Indus., Inc., 821 N.E.2d 580, 593 (Ohio Ct. App. 2004) (“[I]n order for
animal studies to be admissible to prove causation in humans, there must be good grounds
to extrapolate from animals to humans[.]” (internal quotation marks and citation omitted)).
“[I]t is . . . within the court’s province to ensure that . . . [an] expert’s ultimate conclusion
on causation, ‘fits’ with the data alleged to support it.” Heller, 167 F.3d at 158.
“[L]aboratory animal studies are generally viewed with more suspicion than epidemiologic[]
studies, because they require making the assumption that chemicals behave similarly in
different species.” See In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1223, 1241
(E.D.N.Y. 1985) (alteration, internal quotation marks, and citation omitted), aff’d, 818 F.2d
187 (2d Cir. 1987). Dr. Dahlgren did not provide any information regarding why the results
involving those species, chemicals, and doses are meaningful to establish the effect the
specific petrochemical mixture at issue in this case would have on humans. See Sorensen
v. Shaklee Corp., 31 F.3d 638, 646 n.12 (8th Cir. 1994) (“Because of the dose-response
differential between animals and humans . . . extrapolating to humans from animal studies
is problematic.”).

{30} Plaintiffs’ argument that the district court improperly rejected Dr. Dahlgren’s
reliance on mouse studies based solely on a general apprehension about inter-species and
inter-dosage extrapolation, see Metabolife Int’l., Inc. v. Wornick, 264 F.3d 832, 842 (9th Cir.
2001), is not well taken. Instead, the record reflects that the district court thoroughly
reviewed the various animal studies Dr. Dahlgren relied upon in forming his causation
opinion. As discussed above, the district court focused on the problems inherent with the
animal studies as applied to the specific facts and claims in this case. The district court
concluded that the animal studies were too dissimilar to the facts in this case. The district
court also concluded that the Plaintiffs presented no information regarding the dose response
relationship and extrapolation to humans. This missing link in the causation analysis was
never addressed by Plaintiffs. As a result, it was not an abuse of discretion for the district
court to determine that the animal studies failed to provide the necessary scientific
foundation required to support Dr. Dahlgren’s opinions regarding general causation for lupus
and autoimmune disorders.

{31} The record reflects that the district court also reviewed and considered the human
studies relied on by Dr. Dahlgren to form his causation opinion. The additional human
studies relied on by Dr. Dahlgren discussed the individual immunological, neurological or
respiratory effects of pristane, benzene or mercury. Significantly, none of these studies dealt
with the specific mixture relied upon by Dr. Dahlgren or the medical disorders at issue in this

                                               11
case. Plaintiffs provided no information as to how and why the different exposures
translated to the plaintiff group in this case. See Mitchell v. Gencorp, Inc., 165 F.3d 778,
781-83 (10th Cir. 1999) (upholding a district court’s exclusion of expert opinions based on
studies that address the relationship between diseases and agents different from those at issue
in the litigation); Siharath v. Sandoz Pharm. Corp., 131 F. Supp. 2d 1347, 1365 (N.D. Ga.
2001) (excluding proffered testimony because both the agent and the disease at issue were
not the same as those discussed in studies on which plaintiffs’ experts relied), aff’d sub nom.
Rider v. Sandoz Pharm. Corp., 295 F.3d 1194 (11th Cir. 2002).

{32} Plaintiffs could not articulate any study, other than Dr. Dahlgren’s own study of the
Westgate population, that would support the opinion that the petrochemical mixture caused
the lupus and other autoimmune disorders identified in this case. Dr. Dahlgren himself
explained that the most factually similar study he relied upon involved a lupus cluster near
a hazardous waste site in Georgia, but that the study never identified the chemicals present
at the waste site. While the non-existence of good data is not fatal to a claim, the fact that
there is no other available data does not loosen the requirements that expert witnesses need
base their conclusions on adequate scientific evidence and not conjecture. See Parkhill,
2010-NMCA-110, ¶ 37 (“Expert testimony may be received if, and only if, the expert
possesses such facts as would enable him to express a reasonably accurate conclusion as
distinguished from mere conjecture.” (internal quotation marks and citation omitted)); Perry
v. Novartis Pharm. Corp., 564 F. Supp. 2d 452, 468 (E.D.Pa. 2008) (“In cases where no
adequate study shows the link between a substance and a disease, expert testimony will
generally be inadmissible, even if there are hints in the data that some link might exist. This
may mean that early victims of toxic torts are left without redress because they are unable
to prove their cases with the scientific data that exists.”); see also Rosen v. Ciba-Geigy
Corp., 78 F.3d 316, 319 (7th Cir. 1996) (“[T]he courtroom is not the place for scientific
guesswork, even of the inspired sort. Law lags [behind] science; it does not lead it.”).

{33} There must be a link between the factual data used by an expert and the conclusion
the expert offers. Here, the record reflects that the district court thoroughly reviewed the
various studies, both human and animal, that Dr. Dahlgren relied upon to form his opinion
regarding causation. We conclude that the district court did not abuse its discretion when
it determined that Dr. Dahlgren could not base his general causation opinions on his
cross-sectional study or the other cited human and animal studies. For the foregoing reasons,
we affirm the district court’s grant of partial summary judgment in favor of Defendants.

II.    The Motion for New Trial

{34} After the jury was selected and sworn, the court instructed the jury pursuant to UJI
13-110 NMRA. Since March 1, 2005, the instruction has allowed jurors to discuss the
evidence among themselves throughout the trial, including witnesses, testimony, and
exhibits, but only in the jury room when all of the jurors are present. It further cautions
jurors to keep an open and impartial mind, to not prejudge the case, and to not attempt to
sway other jurors about the outcome of the case before commencing final deliberations.

                                              12
Throughout the course of the seventeen day trial, the district court repeatedly reminded the
jurors about these concepts. The jury deliberated a little over one and a half hours before
announcing its verdict. In its verdict, the jury found against Plaintiffs on all claims.

{35} After the verdict was announced, Plaintiffs declined to have the jury polled.
Plaintiffs later moved for a new trial based on the affidavit of an alternate juror who did not
participate in the final deliberations. The record was also supplemented with affidavits from
three jurors who were involved in deliberations.

{36} Plaintiffs assert that the district court abused its discretion by denying their motion
for a new trial as to all Plaintiffs. Plaintiffs base this motion on affidavits submitted by the
three jurors and the one alternate juror. Plaintiffs do not argue on appeal that extraneous
information reached the jury. Before the district court could reach the merits of Plaintiffs’
misconduct claims, it had to first determine whether Rule 11-606(B) NMRA permitted the
court to even consider the juror affidavits. The district court assumed without deciding that
the affidavits were admissible. The district court then addressed the issue of whether
comments made primarily by two jurors affected juror deliberations and Plaintiffs’ right to
a fair trial. To determine whether the district court properly denied Plaintiffs’ motion for
new trial we discuss: (A) our standard of review, (B) the admissibility of juror affidavits
under Rule 11-606(B), (C) the discussions by the jury that are now authorized by UJI 13-
110, and (D) the admissibility of the juror affidavits in this case.

A.      Standard of Review

{37} The denial of a motion for new trial based on jury misconduct is reviewed under the
abuse of discretion standard. State v. Mann, 2002-NMSC-001, ¶ 17, 131 N.M. 459, 39 P.3d
124. The interpretation of the scope of Rule 11-606(B), the rule governing admissibility of
juror testimony, is subject to de novo review. Shadoan v. Cities of Gold Casino, 2010-
NMCA-002, ¶ 6, 147 N.M. 444, 224 P.3d 671.

B.      Admissibility of the Juror Affidavits under Rule 11-606(B)

{38} Our initial inquiry is whether the juror affidavits are admissible under Rule 11-
606(B). With limited exceptions, New Mexico has long adhered to the rule that juror
testimony is inadmissible when offered to impeach the jury’s verdict. See Goldenberg v.
Law, 17 N.M. 546, 556-57, 131 P. 499, 502 (1913); see also Skeet v. Wilson, 76 N.M. 697,
699, 417 P.2d 889, 890 (1966) (“New Mexico has long been aligned with those courts which
deny the right to a new trial based alone on affidavits or statements of jurors presented after
the jury has been discharged.”). Rule 11-606(B), the mechanism for excluding such
testimony, provides:

       Upon an inquiry into the validity of a verdict or indictment, a juror may not
       testify as to any matter or statement occurring during the course of the jury’s
       deliberations or to the effect of anything upon that or any other juror’s mind

                                              13
       or emotions as influencing . . . the verdict . . . . A juror’s affidavit or
       evidence of any statement by the juror may not be received on a matter about
       which the juror would be precluded from testifying.

{39} We have previously explained that the purpose of Rule 11-606(B) is to protect the
sanctity of jury deliberations. See State v. Ramming, 106 N.M. 42, 48, 738 P.2d 914, 921
(Ct. App. 1987) (stating that New Mexico cases relating to communications with the jury
during deliberations and involving matters concerning the deliberations “obviously reflect
the sacrosanctity of the jury’s deliberative process”); Shadoan, 2010-NMCA-002, ¶ 13
(“[J]ury deliberation is intended to be private, and the potential for deliberations to be open
to public investigation would cause a chilling effect and prevent jurors from functioning
effectively.”). However, we have not used the rule as a per se bar against consideration of
any statement made by a juror. See Rios v. Danuser Mach. Co., 110 N.M. 87, 91, 792 P.2d
419, 423 (Ct. App. 1990) (“[T]he rule does not prevent the questioning of a juror or the
consideration of an affidavit concerning the truthfulness of a juror’s answers to questions
propounded on voir dire.”). Instead, we have only applied the rule to prevent a court from
considering juror testimony or affidavits to impeach a verdict on the basis of alleged juror
statements that demonstrate an inquiry into the mental processes of jurors during their
deliberations. See id.

{40} On appeal, Plaintiffs assert only juror bias and prejudgment during trial. As a result,
the juror affidavits, which describe statements made during the course of trial, are
inadmissible under Rule 11-606(B) if they implicate the jury’s deliberative process.
Plaintiffs argue that Rule 11-606(B) does not preclude consideration of the affidavits due to
this Court’s holding in Goodloe v. Bookout, 1999-NMCA-061, ¶ 17, 127 N.M. 327, 980 P.2d
652 (Ct. App. 1999). In Goodloe, we admitted a juror’s affidavit containing evidence of
possible jury misconduct because “[i]t addresse[d] matters that occurred prior to the jury’s
deliberations; and it [did] not purport to state how those matters affected the later
deliberations.” Id. However, the jury in Goodloe was instructed not to discuss the case with
anybody, including other jurors, during the trial, see UJI 13-106(1) NMRA, and not to form
or express an opinion as to any issue until all of the evidence has been heard, see UJI
13-106(5) NMRA. Goodloe, 1999-NMCA-061, ¶ 15.

{41} In 2005, after this Court decided Goodloe, our New Mexico Supreme Court
promulgated UJI 13-110, one of the preliminary jury instructions used in this case. UJI 13-
110 permits the jury to discuss evidence amongst themselves during trial and states, in
relevant part:

       [Y]ou may discuss the evidence during the trial, but only among yourselves
       and only in the jury room when all of you are present. . . . The kinds of things
       you may discuss include the witnesses, their testimony, and exhibits. Be
       careful, however, not to make up your minds or try to convince others about
       the final outcome of the case until you have heard everything—all the
       evidence, the final instructions of law, and the attorneys’ closing arguments.

                                              14
       It would be unfair to the parties if you attempt to decide the outcome of the
       case before you begin final deliberations.

Thus, because UJI 13-110 now permits juries to discuss the evidence among themselves
during trial, we must first determine the continued vitality of our holding in Goodloe.

C.     Discussions Authorized by UJI 13-110

{42} The admissibility of the juror affidavits in this case depends on whether juror
discussions of evidence throughout trial and amongst themselves, as permitted by UJI 13-
110, are shielded from public disclosure by Rule 11-606(B). Plaintiffs contend that the
promulgation of UJI 13-110 did not alter the scope or meaning of Rule 11-606(B) and the
Goodloe exception to the rule still applies. In response, Shell argues that UJI 13-110 permits
the jury to deliberate throughout the trial and, therefore, the Rule 11-606(B) shield over the
workings of the jury’s deliberative process extends to the deliberations authorized under UJI
13-110.

{43} “We apply the same rules of construction to procedural rules adopted by the Supreme
Court as we do to statutes.” State v. Miller, 2008-NMCA-048, ¶ 11, 143 N.M. 777, 182 P.3d
158. According to those rules of construction, our overarching goal is to determine the
underlying intent of the drafters, Roark v. Farmers Grp., Inc., 2007-NMCA-074, ¶ 50, 142
N.M. 59, 162 P.3d 896, and we begin that task by parsing the plain language of the rule. See
State v. Steven B., 2004-NMCA-086, ¶ 15, 136 N.M. 111, 94 P.3d 854 (“Our starting point
is the plain language of the statute.”). Additionally, to determine whether Rule 11-606(B)
protects the juror affidavits from consideration, we must read Rule 11-606(B) in pari materia
with the more recently adopted UJI 13-110 to achieve the goals of both. See Walker v.
Walton, 2003-NMSC-014, ¶ 11, 133 N.M. 766, 70 P.3d 756 (using the concept of in pari
materia to guide its interpretation of the Rules of Criminal Procedure); Att’y Gen. v. N.M.
Pub. Regulation Comm’n, 2011-NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453 (“[T]wo
statutes covering the same subject matter should be harmonized and construed together when
possible, in a way that facilitates their operation and the achievement of their goals.”
(internal quotation marks and citation omitted)).

{44} The plain language of Rule 11-606(B) indicates that the determinative characteristic
of the protection set forth in the rule is not when during a trial the discussion occurs, but
whether the discussion is, by its nature, part of the jury’s discussion and analysis of the
evidence in the case. This conclusion is bolstered by the Supreme Court’s recent adoption
of UJI 13-110 which permits the jury to weigh the evidence presented to them at trial and
anticipates that the jury will form preliminary opinions on the evidence. We conclude that
the Supreme Court promulgated UJI 13-110 with the intent to permit the jury to engage in
a limited form of protected deliberation throughout the course of trial. This conclusion is
consistent with the dictionary definition for “deliberation.” Webster’s Third New
International Dictionary 1191 (Unabridged 1993) (defining “deliberation” as “the act of
weighing and examining the reasons for and against a choice or measure”); see also

                                             15
Battishill v. Farmers Alliance Ins. Co., 2006-NMSC-004, ¶ 8, 139 N.M. 24, 127 P.3d 1111
(“We . . . hold that the common and ordinary meaning . . . may be ascertained from a
dictionary.”). We also recognize that our Supreme Court was aware of Rule 11-606(B) when
it adopted UJI 13-110. See Pub. Serv. Co. v. N.M. Pub. Util. Comm’n, 1999-NMSC-040,
¶ 23, 128 N.M. 309, 992 P.2d 860. If the Supreme Court had not intended the protection of
Rule 11-606(B) to include discussions of the evidence during trial, then the language of UJI
13-110 would have clearly distinguished between deliberations and discussions of the
evidence during trial. See, e.g., Ind. Jury Rule 20(a)(8) (“[J]urors . . . are permitted to
discuss the evidence among themselves in the jury room during recesses from trial when all
are present, as long as they reserve judgment about the outcome of the case until
deliberations commence.”); N.D. R. Ct. 6.11(a) (“In a civil case, the court may, without
objection, allow the jury to engage in predeliberation discussion.”). Instead, the instruction
contemplates both preliminary discussions and “final deliberations.” See UJI 13-110. We
see no practical way to distinguish between the two for purposes of protecting jury
communications. Therefore, the Supreme Court’s promulgation of UJI 13-110 reflects its
belief that Rule 11-606(B) shields the jury’s mental processes, including juror discussions
of the evidence among themselves prior to final deliberations.

{45} We conclude that the promulgation of UJI 13-110 specifically changed the
prohibition for pre-deliberation discussions that this Court outlined in Goodloe. Our
conclusion is consistent with the purpose of Rule 11-606(B): to cloak the mental processes
of the jury in reaching its verdict. To conclude otherwise, that Rule 11-606(B) would only
shield final deliberations from disclosure, would thwart the purposes of both Rule 11-606(B)
and UJI 13-110. Allowing jurors to discuss their opinions on the witnesses, the testimony,
and the exhibits, but not protecting those discussions from public disclosure under Rule 11-
606(B), would dissuade jurors from engaging in exactly the type of evidentiary discussions
during trial that UJI 13-110 was adopted to permit. Moreover, the sanctity of these
preliminary jury discussions would become vulnerable to public exposure if only final
deliberations were protected. See State v. Jojola, 2005-NMCA-119, ¶ 23, 138 N.M. 459,
122 P.3d 43 (“The sanctity of jury trials cannot be . . . subjected to the hazard of suspicion.”
(internal quotation marks and citation omitted)). The purpose of discussing the evidence
during trial is to weigh the evidence and examine the different reasons for and against the
ultimate issue in the case. See, e.g., Shari Seidman Diamond et al., Juror Discussions
During Civil Trials: Studying an Arizona Innovation, 45 Ariz. L. Rev. 1, 62, 63-64, 71
(2003) (discussing the benefits to jury comprehension of trial evidence when jurors are
instructed that trial discussions are proper). The district court cannot review or consider
such discussions by the jury unless these discussions directly implicate the narrow issue of
improperly “[deciding] the final outcome of the case.” UJI 13-110 (emphasis added); see
Rule 11-606(B). Any other consideration of preliminary jury discussions for the purpose of
impeaching a jury’s verdict would undermine the sanctity of the jury deliberation process
and violate Rule 11-606(B).

C.      Admissibility of the Juror Affidavits in This Case


                                              16
{46} Having determined that discussions of the evidence prior to final deliberations are
protected from disclosure by Rule 11-606(B), we must next determine the application of the
rule to the affidavits in this case. The juror affidavits present the following as instances of
juror misconduct: (1) statements that some of Plaintiffs’ symptoms were the result of
medication side effects; (2) a statement that one of the Plaintiffs was ill with something other
than contamination; (3) a statement that asthma and bronchitis could only be diagnosed by
a chest x-ray, contrary to Plaintiffs’ medical expert; (4) a statement that the Department of
Health went to the neighborhood because of tuberculosis; (5) comments regarding the sexual
orientation and morals of two of the plaintiffs; (6) a statement that oil companies would “pull
out” in the event of a pro-plaintiff verdict; and (7) comments during breaks in the trial that
the trial was “a waste of . . . time” and that the juror was tired of hearing the same evidence.
With one possible exception, we conclude that the juror statements discussed in the
affidavits are inadmissible comments on the jury’s preliminary deliberation process.

{47} The jury here was instructed that it was proper to discuss the evidence among
themselves during trial, and, as the district court recognized, most of the reported remarks
are permissible comments on the evidence presented to the jury. Statements one through
four, for example, are all remarks on the evidence elicited at trial and are clearly permissible
jury evaluations of the strengths and weaknesses of the trial evidence. See State v.
Chamberlain, 112 N.M. 723, 732, 819 P.2d 673, 682 (1991). These statements regarding
Plaintiffs’ symptoms, the process for diagnosing the symptoms, and whether those symptoms
might be indicative of illnesses other than contamination, indicate little more than that jury
members weighed the credibility of the medical witnesses and their testimony as a part of
the preliminary deliberation process. As such, statements one through four can be
considered inadmissible as a proper preliminary comment on the sufficiency of the evidence
presented at trial.

{48} Additionally, while statements five and six are not necessarily relevant evaluations
of the evidence, the comments do derive from testimony presented throughout the trial. The
statement regarding the morals of one Plaintiff, for example, was based on her testimony that
she had a child out of wedlock. Similarly, the comment regarding another Plaintiffs’ sexual
orientation could have referred to his testimony that after his divorce, a male moved into his
home. The district court correctly noted that these comments were insensitive and irrelevant
but held that they were nonetheless permissible comments regarding the witnesses and the
testimonial evidence received. See UJI 13-110. The district court analyzed whether these
comments indicated juror bias and ultimately concluded that the jury found against all nine
Plaintiffs as to liability and, therefore, the district court could not find that statements
regarding only two Plaintiffs had a prejudicial impact on juror deliberations. Additionally,
the district court explained that Plaintiffs failed to present any evidence that these comments
actually imputed bias to the jurors who uttered them or that the comments imputed bias to
the rest of the jury.

{49} Next, the district court found no evidence that discussing the effect a verdict against
Shell might have on Shell’s continued activity in Hobbs entered into the juror’s deliberations

                                              17
or prejudiced Plaintiffs in any way. Similarly, this was also a permissible discussion on the
evidence presented at trial. Plaintiffs themselves discussed the possible effect of a verdict
for Plaintiffs on the oil and gas industry in closing argument, and the district court
acknowledge that “whether subtly or directly the parties argued the general effect a verdict
would have.” The affidavits support an inference that statements one through six were made
during jury discussions of the evidence occurring throughout trial and thus the district court
improperly considered them. Although the district court erred in considering these portions
of juror affidavits under Rule 11-606(B), it properly denied Plaintiffs’ motion for new trial
with regard to these statements.

{50} The seventh assertion regarding juror statements that the trial was a “waste of . . .
time” may fall outside the shield provided by Rule 11-606(B). As such, if the statements
could be considered evidence of fixed predeterminations of the final outcome in the case,
then it would be proper for this Court to evaluate the statements. This is because the
statements may reflect a violation of the preliminary deliberation instruction under UJI 13-
110 and the recognition that one biased juror can destroy “[t]he integrity of a jury.” State
v. Chavez, 78 N.M. 446, 447, 432 P.2d 411, 412 (1967). The party claiming juror bias has
the burden of proof to demonstrate, based on the presence or absence of evidence, “that [the
alleged impartial jurors] were unwilling or unable to decide the case based on the evidence
adduced at trial and the instructions given by the [district] court[.]” State v. Rackley, 2000-
NMCA-027, ¶ 11, 128 N.M. 761, 998 P.2d 1212. Here, the record reflects that the district
court undertook a thorough analysis of whether these statements indicated that the jurors
failed to deliberate before ultimately deciding that Plaintiffs had failed to meet their burden.

{51} Plaintiffs assert that a juror’s statements throughout trial “clearly communicated that
[the juror’s] views would not be altered by anything that occurred at trial.” After reviewing
the juror affidavits relied on by Plaintiffs, the district court looked at the totality of the
circumstances and the trial conduct of the allegedly biased jurors, and ultimately concluded
that the Plaintiffs’ allegations of jury pre-determination was not supported by the evidence.
This conclusion is supported by the record.

{52} The juror affidavits merely assert that within the first three days of trial a juror stated,
“Why are we here? This is a waste of our time[,]” and that “we know what the outcome is.”
The juror affidavits also assert that, at some point during the trial, the same juror complained
that she was tired of hearing the same evidence and just wanted to go home. However, these
statements alone are vague and are insufficient to meet Plaintiffs’ burden of proof to present
evidence that the juror’s opinion was immutably fixed. See United States v. Caldwell, 83
F.3d 954, 956 (8th Cir. 1996). Instead, the statements can be interpreted many different
ways, including the possibility that they are the result of juror discussions regarding the
weaknesses of Plaintiffs’ case, and Plaintiffs have failed to point this Court to anything in
the record that would indicate otherwise. See Murphy v. Strata Prod. Co., 2006-NMCA-008,
¶ 9, 138 N.M. 809, 126 P.3d 1173 (“Absent a record, we are left with the arguments in the
briefs, and argument of counsel is not evidence.”).


                                               18
{53} On the contrary, to support their argument that these statements reflect a jury
member’s immutable opinion, Plaintiffs point to permissible discussions of the evidence
presented by the parties at trial. But, along with UJI 13-110, the court instructed the jury that
they should not hesitate to re-examine their views and change their opinions after consulting
with one another and throughout the course of their deliberations. Unlike in Goodloe, the
jury instructions in this case allowed the jury to form preliminary opinions about the
evidence and to discuss those opinions throughout the course of trial. Therefore, a jury
member’s expression of a preliminary opinion as to liability did not alone violate the district
court’s instructions. Without any additional basis to establish that any juror’s opinion was
immutably fixed or that the comments were not based on a preliminary view of the trial
evidence, we cannot conclude that the district court abused its discretion in rejecting the
Plaintiffs’ arguments that they were denied the right to a fair trial based upon the juror
affidavits submitted for review.

{54} After reviewing the district court’s decisions, we conclude that the district court
erroneously reviewed and considered all but one portion of the juror affidavits. Based on
our review of the admissible portion of the affidavits addressing the possibility of a juror’s
comments that could be considered a predetermination of the final outcome of the case, we
affirm the district court’s denial of Defendant’s motion for a new trial on that basis as well.

{55} We note that Plaintiffs’ brief in chief factually alleged that some of the allegedly
improper discussions of the evidence occurred in small groups outside the presence of all
jury members. This allegation arises from the affidavit of the alternate juror who stated that
“[d]iscussions would take place when other jurors were out of the jury room.” Plaintiffs,
however, did nothing to develop how or whether these discussions involved deliberations,
evidence, witnesses, testimony or exhibits. Moreover, Plaintiffs did not address or
distinguish this argument from their general bias argument or specify the matters discussed
outside the presence of the entire jury. Plaintiffs did not argue that comments made in small
groups were in violation of UJI 13-110 rather than permitted discussions of topics such as
the weather, sports, family, work, or a host of other unrelated topics that did not involve
actual deliberation of the case. As a result, we will not address this issue further. See State
v. Ortiz, 2009-NMCA-092, ¶ 41, 146 N.M. 873, 215 P.3d 811 (“Because the State failed to
satisfy its obligation to develop the circumstances and to specifically and fully argue the
points, we will not address those points on appeal.”); Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (asserting that the appellate courts of
New Mexico need not entertain inadequately developed arguments); Joslin v. Gregory,
2003-NMCA-133, ¶ 8, 134 N.M. 527, 80 P.3d 464 (“We will not decide this case on a theory
not explored or argued by the parties on appeal.”); see also State v. Boergadine, 2005-
NMCA-028, ¶ 34, 137 N.M. 92, 107 P.3d 532 (finding that the defendant did not adequately
address two issues mentioned only in brief headings).

CONCLUSION

{56}    For the foregoing reasons, we affirm the judgment of the district court.

                                               19
{57}   IT IS SO ORDERED.

                                           ____________________________________
                                           TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
CELIA FOY CASTILLO, Chief Judge

____________________________________
MICHAEL D. BUSTAMANTE, Judge

Topic Index for Acosta v. Shell W. Expl. & Prod., Inc., No. 29,502

APPEAL AND ERROR
Standard of Review

CIVIL PROCEDURE
Expert Witness
Motion for New Trial
New Trial
Rules, Construction of Civil Procedure
Summary Judgment

EVIDENCE
Expert Witness
Scientific Evidence & Daubert Standard

JURIES
Impartial Jury
Improper Juror Communication
Propriety of Juror Conduct

TORTS
Toxic Tort




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