Griego v. State Farm

                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         December 31, 2020
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 representative of the wrongful death estate
 of Alec J. Jaramillo, deceased; ANDREW

       Plaintiffs - Appellants,

 v.                                                            No. 19-2131
                                                  (D.C. No. 1:17-CV-00244-KBM-JHR)
 STATE FARM MUTUAL                                              (D. N.M.)
 as personal representative of the estate of
 Russell E. Douglas,

       Defendants - Appellees.

                            ORDER AND JUDGMENT*

Before LUCERO, EBEL, and MORITZ, Circuit Judges.**

      The parents and estate of Alec Jaramillo appeal the district court’s evidentiary

rulings and denial of a motion for judgment as a matter of law. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
          After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

       On September 13, 2014, Alec Jaramillo rode his motorcycle west on Santa Fe

Avenue in Grants, New Mexico. Russell Douglas, driving his vehicle east on the

same road, turned left in front of Jaramillo’s motorcycle and the two collided. The

collision resulted in Jaramillo’s death and the filing of a wrongful death lawsuit by

Jaramillo’s estate and parents (“Plaintiffs”). At trial, the Plaintiffs asserted that

Jaramillo’s death was the result of Douglas’ negligence in failing to yield the right of

way, making an improper left turn, and failure to keep a proper lookout. As part of

their case, the Plaintiffs specifically asserted that medical conditions affecting

Douglas impaired his ability to safely operate a motor vehicle. In contrast, Douglas

presented evidence of his ability to safely operate a motor vehicle and contended that

the collision was caused by Jaramillo’s speeding.1

       The trial established that Douglas, waiting in the left turn lane to cross the two

lanes of oncoming traffic into a post office entrance, saw an oncoming landscape

truck being driven by Troy Jaramillo (who was of no relation to Alec) in the lane

nearest to Douglas. This truck, hauling a trailer filled with landscape debris, was

driving at approximately 35 mph, the posted speed limit for the road. As the truck

approached the intersection, Anthony Sessions, the truck’s front seat passenger,

heard Jaramillo’s motorcycle accelerate behind the truck in the right lane of traffic.

After Jaramillo passed the truck on the right, he collided with Douglas’ car as

         Douglas died before the case reached trial. His estate and insurance company
litigated this case on his behalf.
Douglas was completing his turn across traffic into the post office. At the jury trial,

Sessions testified that he first noticed Jaramillo’s motorcycle behind him in the right

lane about one-half block back from the intersection when he heard the motorcycle

throttle open up, looked back, and saw the motorcycle coming, increasing speed the

entire time. He stated that the motorcycle “flew past” the truck, and the collision

occurred about 30 feet in front of them, seconds after the motorcycle passed the

truck. Sessions testified that the motorcycle was going approximately 40-45 mph and

increasing in speed as it passed, and that Douglas had time to safely turn in front of

the truck, which was driving at the speed limit. The truck was able to brake and

avoid the accident that occurred two to three car-lengths ahead of it. After the truck

pulled to the side of the road, Sessions sought medical assistance for Jaramillo.

Jaramillo died at the scene.

      At trial, both sides presented eyewitness and expert accident reconstruction

testimony to support their respective interpretations of the accident. The jury returned

a verdict finding Douglas not negligent. During the trial, the Plaintiffs sought to

introduce expert testimony on the effect of noise volume on eyewitness perception of

speed, to admit accident reports on the collision, and to impeach the eyewitness

testimony of Sessions by introducing citizen complaints made against him in his

capacity as a law enforcement officer. The district court excluded all three. The

Plaintiffs appeal these rulings, along with what they contend were the district court’s

erroneous admissions of evidence concerning legal modifications to the motorcycle

and motorcycle helmet testimony. Finally, the Plaintiffs contend that the district

court erred in denying a motion for judgment as a matter of law, or, in the alternative,

for a new trial, based on their view that New Mexico law mandates the conclusion

that Douglas’ left turn was negligence per se.


      New Mexico law governs this diversity case. See Stickley v. State Farm Mut.

Auto. Ins. Co., 

505 F.3d 1070

, 1076 (10th Cir. 2007). “The admission or exclusion

of evidence lies within the sound discretion of the trial court and cannot be reversed

absent an abuse of discretion.” Robinson v. Mo. Pac. R. Co., 

16 F.3d 1083

, 1086

(10th Cir. 1994). A district court abuses its discretion when “its decision is based on

clearly erroneous factual findings or the misapplication of legal standards.” Mid-

Continent Cas. Co. v. Vill. at Deer Creek Homeowner’s Ass’n, Inc., 

685 F.3d 977


981 (10th Cir. 2012). “An erroneous admission of evidence is harmless unless it had

a substantial influence on the outcome or leaves one in grave doubt as to whether it

had such an effect.” James River Ins. Co. v. Rapid Funding, LLC, 

658 F.3d 1207


1212 (10th Cir. 2011) (quotation omitted).


      The Plaintiffs contend that the court abused its discretion in excluding

testimony from the Plaintiffs’ accident reconstruction expert, Dennis O’Brien, about

the “effect of motorcycle sound level on an individual’s ability to estimate the

motorcycle’s speed.” Under Federal Rule of Evidence 702, the party offering expert

testimony bears the burden of establishing its admissibility. United States v.


555 F.3d 1234

, 1241 (10th Cir. 2009). Under Rule 702, expert testimony is

admissible only if (a) the witness’ expertise “will help the trier of fact to understand

the evidence or to determine a fact in issue; (b) the testimony is based upon sufficient

facts or data; (c) the testimony is the product of reliable principles and methods; and

(d) the witness has applied the principles and methods reliably to the facts of the

case.” Fed. R. Evid. 702.

         To determine whether proposed expert testimony is based on reliable methods

and principles, the following factors are relevant: “(1) whether the particular theory

can be and has been tested; (2) whether the theory has been subjected to peer review

and publication; (3) the known or potential rate of error; (4) the existence and

maintenance of standards controlling the technique’s operation; and (5) whether the

technique has achieved general acceptance in the relevant scientific or expert

community.” United States v. Baines, 

573 F.3d 979

, 985 (10th Cir. 2009) (citing

Daubert v. Merrell Dow Pharm., 

509 U.S. 579

, 593-94 (1993)). To fulfill its

gatekeeping function to ensure that the expert testimony offered by Plaintiffs rested

“on a reliable foundation and is relevant to the task at hand,”

id. (quotation omitted), the

district court held two Daubert hearings. It ultimately precluded the expert

testimony on the effect of motorcycle sound levels on eyewitness perception of


         Plaintiffs sought to have O’Brien testify that increased decibel levels result in

increased speed estimates on the basis of an article in The Accident Reconstruction

Journal titled “Estimates of Motorcycle Speed Made by Eyewitnesses Under Ideal

Experimental Conditions,” and a reference to one treatise. Rather than supporting the

conclusion that the testimony was relevant and based on a reliable foundation,

O’Brien testified that the article was “all over the place” on its conclusions and their

bases and that the article’s findings did not show that witnesses overestimated speed

based on volume. He also agreed that its only statistically significant finding was

that witness accuracy varied based on the observer’s self-perceived ability to estimate

speeds. Further, O’Brien acknowledged that the article’s conclusions were based on

preliminary experimental data from one controlled experiment and he did not know

whether the article had been peer reviewed, although he presumed it had. The

article’s data on the relation of sound to a witness’ accuracy was therefore neither

reliable nor relevant. As to the treatise relied upon by O’Brien, it merely supported

the conclusion that people are poor estimators of speed—testimony that the district

court allowed. The district court’s decision to exclude this testimony was an

appropriate exercise of its gatekeeping function under Daubert.


      Plaintiffs next argue that the district court abused its discretion when it

excluded the Plaintiffs’ proffered accident reports on the basis of New Mexico law

prohibiting their admission. N.M. Stat. Ann. § 66-7-213(B). The Federal Rules of

Evidence generally govern the admissibility of evidence in a diversity lawsuit. Sims

v. Great Am. Life Ins. Co., 

469 F.3d 870

, 877 (10th Cir. 2006). State law applies,

however, when it “reflects substantive concerns or policies.”

Id. at 880. 6

       New Mexico courts have not interpreted the provision barring admission of

accident reports or evaluated whether it is substantive, but a New Mexico federal

district court held that:

       Pursuant to NMSA 1978, § 66-7-213(B), an accident report is
       inadmissible in any trial, civil or criminal. Although New Mexico state
       courts have not addressed the statute’s substantive concerns or policies,
       common and legal sense would surmise that admitting a uniform crash
       report replete with conclusions and causation would transform the
       investigating officer from a witness to the trier-of-fact; and accordingly
       usurp the jury’s responsibility to interpret the facts. The Court, thus,
       finds that Section 66-7-213(B) reflects substantive concerns with
       respect to the weight a jury may afford a crash report. Based on this
       finding, state law applies and the uniform crash report is excluded
       pursuant to Section 66-7-213(B).

Perea v. Conner, 

2015 WL 11111478

, at *1 (D.N.M. Apr. 8, 2015). We agree.

       Plaintiffs argue that the prohibition in § 66-7-213(B) applies only to accident

reports made by the entities listed in § 66-7-213(A), but the text and structure of New

Mexico’s statutory scheme dealing with accident reporting does not support this

interpretation. “It is the policy of New Mexico courts to determine legislative intent

primarily from the legislation itself. . . . If the intentions of the Legislature cannot be

determined from the actual language of a statute, then [courts] resort to rules of

statutory construction, not legislative history.” Regents of the Univ. of N.M. v. N.M.

Fed'n of Teachers, 

962 P.2d 1236

, 1246 (N.M. 1998) (citation omitted). As

explained by the New Mexico Supreme Court, the “principal objective in the judicial

construction of statutes is to determine and give effect to the intent of the legislature.

[Courts] will construe the entire statute as a whole so that all the provisions will be

considered in relation to one another. Statutes must be construed so that no part of

the statute is rendered surplusage or superfluous.”

Id. (citations and quotations


      New Mexico’s statutes establish a series of requirements to notify and make

written accident reports to the New Mexico Department of Transportation. See N.M.

Stat. Ann. §§ 66-7-201 et seq. They also create duties for a variety of third parties to

report accidents or damage (e.g., medical examiners, garages, dealers, and wreckers,

as well as drivers), and impose a duty on drivers to provide information in accident

investigations and render aid. See N.M. Stat. Ann. §§ 66-7-211, 66-7-212, 66-7-203.

The prohibition on the use of accident reports as evidence in any civil or criminal

trial arising out of an accident operates as part of a comprehensive statutory scheme

governing accident reporting obligations. Plaintiffs’ argument that the prohibition on

the use of accident reports at trials applies only to those listed in § 66-7-213(A) is

unpersuasive given the structure of New Mexico’s statutory scheme—a structure that

not only requires reporting for the purposes of public safety but also prevents the

mandatory reporting from being used against a driver in subsequent litigation.

Additionally, interpreting the statute as advocated by the Plaintiffs would render the

limited exception to the exclusion of accident reports in § 66-7-213(D) a nullity, a

result that is contrary to the requirement to construe the statute as a whole and ensure

that no part is rendered superfluous. See § 66-7-213(D) (allowing an accident report

to be introduced in any arbitration or civil action to establish whether the owner or

operator of a motor vehicle is insured or uninsured).

      We agree with the conclusion in Perea, 

2015 WL 11111478

, at *1, that § 66-7-

213(B) reflects substantive concerns or policies of the state of New Mexico about the

weight that a jury would afford an accident report, and further note that it also

operates to encourage filing accident reports. As such, the statute bars their

admission in subsequent civil or criminal trials, and the district court did not abuse its

discretion in excluding the accident reports proffered by the Plaintiffs.2


      In addition to the claims above, the Plaintiffs argue that the district court

improperly limited their cross-examination of Sessions, the passenger in the

oncoming truck and eyewitness to the accident. At trial, the Plaintiffs sought to

impeach Sessions by introducing citizen complaints made against him in his capacity

as a law enforcement officer. After the Defendants objected to these questions as

irrelevant to Sessions’ testimony as a fact witness, the Plaintiffs made no offer of

proof to preserve their objection on appeal. “To preserve an objection to the

exclusion of evidence for appeal, the proponent must make an offer of proof at trial,

first, describing the evidence and what it tends to show and, second, identifying the

grounds for admitting the evidence.” United States v. Roach, 

896 F.3d 1185

, 1191

(10th Cir. 2018) (quotation omitted). “An offer of proof is generally necessary to

preserve an excluded line of cross-examination questioning. Federal Rule 103 does

       Because of our determination that the accident reports were inadmissible
under New Mexico law, we do not address the Plaintiffs’ arguments for their
admission under possible hearsay exceptions.
not carve out any exception for questions posed on cross.”

Id. at 1192


omitted). Because the context of the Plaintiffs’ cross-examination questions does not

make clear the nature of the excluded evidence or the ground for its admission, and

because the Plaintiffs made no offer of proof, they have forfeited their argument that

the district court improperly limited the cross-examination of Sessions.3 See

id. D

      Modifications to Jaramillo’s motorcycle were a central issue at trial, and after

significant litigation the district court excluded “evidence and testimony describing

[the] motorcycle as illegal” but allowed “evidence and testimony describing the

condition and components, or missing components, of the motorcycle.” Asserting

that only the legality of any motorcycle modifications is determinative, the Plaintiffs

contend that the district court erred in allowing evidence concerning legal

modifications to the motorcycle.

      In addition to their failure to identify any legal error in the district court’s

ruling, the Plaintiffs also fail to show that the asserted erroneous admission of

         Similarly, the Plaintiffs now complain that: (1) Sessions’ testimony on his
prior employment as a law enforcement officer impermissibly bolstered his
credibility; and (2) the district court “allowed the defense to circumvent the
prohibition on motorcycle helmet evidence.” But the Plaintiffs failed to object to
these two rulings at trial. “Arguments raised for the first time in a civil appeal may
be reviewed only for plain error.” Tesone v. Empire Mktg. Strategies, 

942 F.3d 979

991(10th Cir. 2019) (quotation omitted). Because the Plaintiffs did not argue for
plain error review in their opening brief, these arguments are also forfeited. See
Kitchen v. Herbert, 

755 F.3d 1193

, 1208 (10th Cir. 2014) (“[T]he omission of an
issue in an opening brief generally forfeits appellate consideration of that issue.”)
(quotation omitted).
evidence was harmful. See James 

River, 658 F.3d at 1212

. The Plaintiffs—who

argue that the modifications to the motorcycle “do not render a vehicle unsafe . . . [or

form] a basis for comparative negligence”—cannot demonstrate that the admission of

evidence regarding legal motorcycle modifications was harmful. The jury found that

Douglas was not negligent. Because comparative negligence is relevant only after a

defendant is found to be negligent, we conclude that the admission of this evidence

was not harmful. See Scott v. Rizzo, 

634 P.2d 1234

, 1240 (N.M. 1981) (“The thrust

of [New Mexico’s] comparative negligence doctrine is to [ ] accomplish

apportionment of fault between or among negligent parties whose negligence

proximately causes any part of a loss or injury . . . .” (emphasis added)). Given the

clear relevance of the motorcycle modifications to the accident’s causation and to the

jury’s understanding of the various experts’ testimony, we cannot conclude that the

district court’s careful ruling on the issue was an abuse of discretion.


      Finally, the Plaintiffs contend that the district court erred in denying a motion

for judgment as a matter of law, or, in the alternative, for a new trial. We review the

denial of a motion for judgment as a matter of law de novo, using the same legal

standard as the district court. Greene v. Safeway Stores, Inc., 

98 F.3d 554

, 557 (10th

Cir. 1996). In conducting our review, we “consider the record in its entirety and

draw all reasonable inferences in favor of the nonmoving party,” but do not “weigh

the evidence, pass on the credibility of witnesses, or substitute our conclusions for

that of the jury.” Miller v. Eby Realty Group LLC, 

396 F.3d 1105

, 1110-11 (10th

Cir. 2005) (quotations omitted). Judgment as a matter of law is only proper when

“the evidence and all inferences to be drawn therefrom are so clear that reasonable

minds could not differ on the conclusion.”

Id. at 1110

(quotation omitted). Under

Rule 59, a new trial may be granted if the verdict is against the weight of the

evidence, if the damages were excessive, if for some reason the trial was unfair to the

moving party, or if questions of law arise from substantial errors in admitting or

rejecting evidence or instructions to the jury. See Montgomery Ward & Co. v.


311 U.S. 243

, 251 (1940).

       We have already determined that the district court did not err in its evidentiary

rulings. Negligence is a question for the factfinder, and, after a full trial, the jury

determined that Douglas was not negligent. The district court denied the Plaintiffs’

motion for judgment as a matter of law because it concluded there was substantial

evidence that Douglas was not negligent in the accident causing Jaramillo’s death.

After reviewing the record, we agree. The jury was provided with evidence

supporting both parties’ contentions on the cause of Jaramillo’s death, and reasonably

determined that Douglas was not negligent. The Plaintiffs’ contention that Douglas

was negligent as a matter of law fails. The trial court instructed the jury on New

Mexico’s law on negligence per se and on requiring a person making a left-hand turn

to yield to another vehicle “which is within the intersection or so close thereto as to

constitute an immediate hazard.” See N.M. Stat. Ann. § 66-7-329. After evaluating

all the evidence presented and being correctly instructed, the jury determined that

Douglas was not negligent, thereby necessarily determining that he did not violate

this statute. There was no abuse of discretion in denying the Plaintiffs’ motion for

judgment as a matter of law or for a new trial.



                                           Entered for the Court

                                           Carlos F. Lucero
                                           Circuit Judge


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