December 22, 2025- Billy Frank Warmuth v. Paccar Inc., No. A-1-CA-41635

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Court of Appeals of New Mexico Filed 12/22/2025 7:17 AM
Filing Date: December 22, 2025
Mark Reynolds
No. A-1-CA-41635
BILLY FRANK WARMUTH and JENNY WARMUTH,
Plaintiffs-Appellants/Cross-Appellees,
V.
PACCAR INC. and INLAND KENWORTH (US), INC.,
Defendants-Appellees/Cross-Appellants.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY Donna J. Mowrer, District Court Judge
Durham, Pittard & Spalding, LLP Caren I. Friedman
Justin R. Kaufman
Philip M. Kovnat
Santa Fe, NM
The Tracy Firm E. Todd Tracy
Garrett D. Rogers
Dallas, TX
for Appellants
Hartline Barger LLP Angela S. Gordon 26 Matthew J. Armijo 27 Santa Fe, NM
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 Mary E. Jones Albuquerque, NM 3 4 5 David H. Estes Dallas, TX for Appellees

OPINION	1
WRAY, Judge.	2
{1} 	Plaintiffs Billy Frank Warmuth and Jenny Warmuth brought suit against	3
Defendants Paccar Inc., and Inland Kenworth (US), Inc., among others, under	4
theories of strict products liability and negligence after Mr. Warmuth was injured	5
while working for the New Mexico Department of Transportation (NMDOT). After	6
the jury found in favor of Defendants, Plaintiffs moved for a new trial and argued	7
that the jury had received prejudicial extraneous information because Defendants’	8
exhibit binders included an index (the Index) that listed, by name, exhibits that the	9
parties had agreed would not be—and were not—submitted to the jury. The district	10
court denied Plaintiffs’ motion as well as Defendants’ request for $486,875.85 in	11
costs. Both parties appeal. We affirm, because the district court did not abuse its	12
discretion in determining that (1) Plaintiffs did not establish a reasonable probability	13
that the Index affected the jury’s verdict; and (2) Plaintiffs were unable to pay	14
Defendants’ cost bill.	15
BACKGROUND	16
{2} 	Mr. Warmuth suffered serious injuries when a colleague reversed a dump	17
truck and ran over him twice. Plaintiffs brought suit against MCT Industries, Inc.,	18
MCT, Inc. (collectively, MCT), and Defendants. Defendants and MCT were each	19
responsible for different aspects of the manufacture and sale of the dump truck,	20

2
which the complaint alleged was unsafe. The case was heavily litigated, and	1
eventually, Plaintiffs settled with MCT. After an eight-day trial, the jury found in	2
favor of Defendants. The district court denied Plaintiffs’ motion for a new trial and	3
Defendants’ cost bill, which we will describe in greater detail within our analysis of	4
these cross-appeals.	5
DISCUSSION	6
{3} 	We first address Plaintiffs’ appeal, related to the denied motion for a new trial,	7
followed by Defendants’ challenge to the district court’s denial of the cost bill.	8
I. 	Plaintiffs’ Motion for a New Trial	9
{4} 	Plaintiffs argue that the district court should have granted their motion for a	10
new trial because the jury received prejudicial extraneous materials when the Index	11
was 	included 	with 	Defendants’ 	exhibit 	binders. 	See 	Rule 	1-059(A) 	NMRA	12
(permitting a new trial “in an action in which there has been a trial by jury, for any	13
of the reasons for which new trials have heretofore been granted”); Kilgore v. Fuji	14
Heavy Indus. Ltd., 2010-NMSC-040, ¶ 1, 148 N.M. 561, 240 P.3d 648 (describing	15
the basis for a new trial when the jury receives extraneous evidence). We review the	16
district court’s denial of a motion for a new trial for abuse of discretion. See State v.	17
Mann, 2002-NMSC-001, ¶ 17, 131 N.M. 459, 39 P.3d 124; see also State v. Lymon,	18
2021-NMSC-021, ¶ 12, 488 P.3d 610 (“An abuse of discretion occurs when the	19

3
ruling is clearly against the logic and effect of the facts and circumstances of the	1
case.” (internal quotation marks and citation omitted)).	2
{5} 	On the last day of trial, outside of the presence of the jury, the parties conferred	3
about which exhibits would go back to the jury for deliberations. During the trial, all	4
of the 447 exhibits that had been preadmitted were not used, but Defendant wanted	5
the jury to have access to all of those preadmitted exhibits. Plaintiffs objected, and	6
the district court ruled that only the exhibits that had been used with a witness would	7
be available to the jury during deliberations. Despite that ruling, Defendants’ exhibit	8
binders went to the jury with the Index, which listed all 447 of the preadmitted	9
exhibits and included a brief description of how Defendants intended to use the	10
exhibits. Approximately two hours into deliberations, the jury sent a note asking to	11
look at some of the exhibits that were on the Index but were not in the binders. The	12
district court ordered that the Index be removed from the binders and gave a written	13
curative instruction to the jury that directed them not to consider the Index. At a later	14
point, before the district court read the verdict, Plaintiffs requested that the Index be	15
made an exhibit, based on concerns that the descriptions of some of the exhibits that	16
had not been used contained prejudicial references, including references to workers’	17
compensation benefits. As part of the motion for a new trial, Plaintiffs offered an	18
affidavit from the jury foreperson, which stated that he had reviewed the Index “in	19
detail” and also saw other jurors reviewing the Index during deliberations. The	20

4
affidavit 	additionally asserted that 	“[i]t 	came to 	the jurors’ attention 	during	1
deliberations that [Mr.] Warmuth may have received workers[’] compensation	2
benefits.”	3
{6} 	Plaintiffs argue that these facts demonstrate that a new trial was warranted.	4
To prove that extraneous juror communications warrant a new trial, the moving party	5
“bears the burden to prove that (1) material extraneous to the trial actually reached	6
the jury, (2) the extraneous material relates to the case being tried, and (3) it is	7
reasonably probable that the extraneous material affected the jury’s verdict or a	8
typical juror.” Kilgore, 2010-NMSC-040, ¶ 1. Because Rule 11-606(B)(1) NMRA	9
does not allow jurors to testify about matters or statements “made during the course	10
of the deliberations or to the juror’s mental processes,” the three requirements make	11
up “an objective test, which inquires into the probability of prejudice, to ascertain	12
the impact that the extraneous material had upon the jury.” Kilgore, 2010-NMSC-	13
040, ¶ 21 (internal quotation marks and citation omitted). The district court	14
concluded that Plaintiffs established the first two requirements but not the third, and	15
on appeal the parties focus on the third requirement—the probability of prejudice.	16
{7} 	We determine whether the probability of prejudice requirement has been met	17
by considering five factors: (1) how the jury received the extraneous material; (2)	18
how long the jury had the extraneous material; (3) whether the extraneous material	19
was received before or after the verdict; (4) at what point during the deliberations—	20

5
if the material was received before the verdict—did the jury obtain the extraneous	1
material; and finally, (5) “[w]hether it is probable that the extraneous material	2
affected the jury’s verdict, given the overall strength of the opposing party’s case.”	3
Id. ¶ 23. We agree with Plaintiffs that the first four probability factors support a new	4
trial: (1) the district court’s bailiff delivered the binders with the Index during	5
deliberations; (2) the jury had access to the Index for almost two hours; (3) the jury	6
received the Index before rendering the verdict based on the jury’s note that asked	7
for exhibits that were shown on the Index; and (4) the jury likely received the binders	8
at the start of deliberations. We disagree, however, that the fifth probability factor	9
weighs in favor of a new trial and conclude that under the specific facts of this case,	10
the fifth probability factor outweighs the other four factors.	11
{8} 	Before we explain, we observe that Plaintiffs argue that they established the	12
fifth probability factor by a preponderance of the evidence, because the Index	13
reinforced Defendants’ trial strategy and substantive defense. Our Supreme Court	14
did not address the burden of proof question in Kilgore. Nor need we here. The	15
question in the present case does not turn on how much evidence would be sufficient	16
to 	meet 	the 	Kilgore 	burden 	and 	justify 	a 	new 	trial. 	Instead, 	based 	on 	the	17
circumstances of the error, the nature of the verdict, and the strength of the evidence	18
supporting the verdict, as we explain, we conclude that the record shows no objective	19

6
evidence that “it is reasonably probable that the extraneous material affected the	1
jury’s verdict or a typical juror.” See id. ¶ 21.	2
A. 	The Circumstances of the Error	3
{9} 	The inadvertent submission of the Index was discovered before the jury	4
rendered the verdict, and as a result, the district court had the opportunity to cure the	5
inadvertent 	disclosure 	by 	written 	instruction. 	When 	evidence 	is 	erroneously	6
admitted, “the general rule is that a prompt admonition to disregard and not consider	7
inadmissible 	evidence 	sufficiently 	cures 	any 	prejudicial 	effect 	which 	might	8
otherwise result.” Velasquez v. Regents of N. N.M. Coll., 2021-NMCA-007, ¶ 47,	9
484 P.3d 970 (internal quotation marks and citation omitted). We see no reason to	10
depart from this approach when considering the curative impact of an instruction in	11
the context of extraneous information that may have reached the jury. See id. ¶ 48	12
(assessing the possibility of prejudice “in the context of the entire trial, deferring to	13
the district court judge, who observed all of the testimony as well as the jury’s	14
reactions to that testimony”); Kilgore, 2010-NMSC-040, ¶ 16 (observing that “[d]ue	15
process means a jury capable and willing to decide the case solely on the evidence	16
before it, and a trial judge ever watchful to prevent prejudicial occurrences and to	17
determine the effect of such occurrences when they happen” (internal quotation	18
marks and citation omitted)). The district court instructed the jury not to use the	19
Index to evaluate Defendants’ arguments, and no evidence establishes that the jury	20

7
disregarded the instruction. See Jolley v. Energen Res. Corp., 2008-NMCA-164,	1
¶ 28, 145 N.M. 350, 198 P.3d 376 (“There is a presumption that the jury understood	2
and complied with the court’s instructions.” (internal quotation marks and citation	3
omitted)); see also United States v. Wiley, 846 F.2d 150, 157-58 (2d Cir. 1988)	4
(affirming the district court’s decision that the jury’s inadvertent exposure to the	5
government’s exhibit list was harmless and “[a]ny possible prejudice was cured by	6
the district court’s prompt inquiry and curative instruction” (omission, internal	7
quotation marks, and citation omitted)). Because the error was caught and quickly	8
corrected, we conclude that there is no “reasonable probability” that the Index would	9
have affected the jury’s verdict.	10
B. 	The Content of the Index and the Nature of the Jury’s Verdict	11
{10} 	Plaintiffs 	nonetheless 	argue that 	the 	contents 	of the 	Index 	necessarily	12
prejudiced the jury and impacted the verdict. Primarily, Plaintiffs focus on titles that	13
reference workers’ compensation benefits and argue that those titles exposed the jury	14
to inadmissible collateral source evidence. The collateral source rule provides that	15
“compensation received from a collateral source does not operate to reduce damages	16
recoverable from a wrongdoer.” Gonzagowski v. Steamatic of Albuquerque, Inc.,	17
2023-NMSC-016, ¶ 19, 533 P.3d 1068 (alteration, internal quotation marks, and	18
citation omitted). In the present case, the district court granted Plaintiffs’ pretrial	19
motion to exclude evidence of collateral source payments, including workers’	20

8
compensation benefits, but several of the entries on the Index referred to such	1
benefits. Plaintiffs argue that there is a reasonable probability that the references on	2
the Index to workers’ compensation benefits swayed the jury away from entering a	3
verdict in the Plaintiffs’ favor. We disagree.	4
{11} 	For multiple reasons, the record does not establish that the jury was affected	5
by the collateral source information that was listed on the Index. Plaintiffs submitted	6
at least one exhibit that referred to workers’ compensation benefits.1 On Plaintiffs’	7
request, the district court instructed the jury mid-trial to disregard any evidence of	8
insurance or benefits after Defendants asked Mr. Warmuth a question that Plaintiffs	9
believed was leading to benefits-related information. The jury received only the	10
Index, not the exhibits, and on reviewing the Index, the jury did not ask to see any	11
exhibits related to workers’ compensation benefits. To the extent that the juror	12
affidavit suggested that the jury learned of possible workers’ compensation benefits	13
during deliberations, it does not establish that the Index was the exclusive source of	14
that knowledge. Indeed, the record establishes that the jury was exposed to collateral	15
source information before the Index was submitted to the jury, and the affidavit notes	16
only that the Index was reviewed and that “[i]t came to the jurors’ attention during	17
deliberations that [Mr.] Warmuth may have received workers[’] compensation	18
1 Exhibit 50, the life care plan, includes several references to workers’
compensation benefits (see, e.g., pages 27, 30, 39, 44, and 46).

9
benefits.” The language of the affidavit highlights that its purpose was to establish	1
the first Kilgore requirement—that the Index reached the jury. The affidavit does	2
not, because it cannot, speak to the third Kilgore requirement and whether the Index	3
affected the jury. See 2010-NMSC-040, ¶ 21 (explaining that the Kilgore test is	4
objective 	because 	Rule 	11-606(B)(1) 	prevents 	jurors 	from 	testifying 	about	5
deliberations or mental processes). Nor does the affidavit indicate when the potential	6
for workers’ compensation benefits came to the jury’s attention and as a result,	7
cannot rebut the curative impact of the district court’s instruction. Not only could	8
the affidavit have been referring to other evidence, but as the district court noted,	9
jurors 	bring 	their 	common 	knowledge 	to 	deliberations, 	including 	existing	10
information 	about 	employment 	benefits. 	See 	Mann, 	2002-NMSC-001, 	¶ 27	11
(explaining that a juror’s “use of their extrinsic knowledge in the deliberative process	12
does not fall into the category of extrinsic influence.” (internal quotation marks and	13
citation omitted)).	14
{12} 	The jury’s decision that Defendants were not liable similarly supports the	15
conclusion that the collateral source information referenced on the Index was not	16
likely to have affected the jury’s verdict, because collateral source evidence pertains	17
to damages, which is an issue the jury did not reach in this case. The jury found no	18
liability—that Defendants were not negligent and their product did not present an	19
unreasonable risk of injury. See UJI 13-1601 NMRA (defining negligence); UJI 13-	20

10
1402 NMRA (defining the duty of a supplier for a products liability claim). Evidence	1
of collateral source payments was relevant to damages and would have shown that	2
Plaintiffs received compensation for the injuries that they alleged were at least	3
partially caused by Defendants’ acts. See Gonzagowski, 2023-NMSC-016, ¶ 19. But	4
the jury was instructed “not to engage in any discussion of damages unless [it had]	5
first determined that there [was] liability.” The disconnect between the basis for the	6
jury’s verdict in this case and the collateral source information contained on the	7
index supports the district court’s ruling. See Young v. Gila Reg’l Med. Ctr., 2021-	8
NMCA-042, ¶ 32, 495 P.3d 620 (holding that an error pertaining to damages is	9
harmless when “a plaintiff does not prevail on liability” (internal quotation marks	10
and citation omitted)); Gonzagowski, 2023-NMSC-016, ¶ 19 (defining inadmissible	11
collateral source evidence in terms of damages).	12
{13} 	We 	are 	not 	persuaded 	by 	Plaintiffs’ 	argument 	that 	collateral 	source	13
information is so prejudicial that courts assume that the impact extends beyond	14
damages to infect the liability determinations of juries. In none of the cases cited by	15
Plaintiffs was the jury either exposed to an Index of exhibits that referenced types of	16
collateral sources of payment—not the exhibits themselves—or directly instructed	17
to disregard the information at nearly the time that it was received. In some of these	18
cases, collateral source information was admitted as evidence and no curative	19
instruction was given. See Tipton v. Socony Mobil Co., 375 U.S. 34, 35-36 (1963);	20

11
Phillips v. W. Co. of N. Am., 953 F.2d 923, 929-30 (5th Cir. 1992). In other cases,	1
the question was purely evidentiary and the Court did not consider the impact of a	2
curative instruction. See Eichel v. N.Y. Cent. R.R. Co., 375 U.S. 253, 254-55 (1963);	3
Wilhelm v. Atlanta Gas Light Co., 380 S.E.2d 276, 277 (Ga. Ct. App. 1989); Cates	4
v. Wilson, 361 S.E.2d 734, 737, 740 (N.C. 1987). In two cases, the district court	5
communicated to the jury that the plaintiff received collateral source evidence	6
payments. See Doucet v. Gulf Oil Corp., 783 F.2d 518, 523 (5th Cir. 1986)	7
(instructing the jury); Wilcox v. Clinchfield R.R. Co., 747 F.2d 1059, 1060-62 (6th	8
Cir. 1984) (responding to a jury note). In at least one case, a curative instruction was	9
insufficient because a party repeatedly referred to collateral source information	10
during trial, contrary to an earlier ruling by the district court. Wilson v. IHC Hosp.,	11
Inc., 2012 UT 43, ¶¶ 2, 54-60, 289 P.3d 369. The circumstances of those cases are	12
markedly different than the present context, and the broad principles set forth in	13
these cases do not assist Plaintiffs’ specific argument. Just because collateral source	14
evidence is generally known to be prejudicial does not mean that the references to	15
collateral source evidence on the Index must have impacted the jury’s liability	16
verdict. It cannot be escaped that collateral source information is tied to damages,	17
that the jury did not reach the question of damages, and that the jury was instructed	18
not to consider evidence about damages until after determining liability. For these	19
reasons, the nature and circumstances of the no-liability verdict support the district	20

12
court’s determination that it was reasonably probable that the references to collateral	1
source evidence within the Index’s titles did not impact the jury’s verdict.	2
{14} 	Plaintiffs, however, do not rely only on the references to collateral source	3
evidence but also point out that (1) many of the titles listed on the Index supported	4
the evidence that Defendants relied on to shift the blame to other actors, including	5
Mr. Warmuth, and to minimize their own roles and duties; and (2) the Index included	6
a “mountain range of evidence” that reinforced Defendants’ argument to the jury	7
that they had provided more exhibits than Plaintiffs. Plaintiffs contend that the titles	8
listed on the Index “could certainly have overwhelmed the jury with descriptions of	9
information that supported the defense” and that therefore, “it is reasonably probable	10
that the extraneous material affected the verdict or a typical juror.” This argument	11
suggests that Kilgore’s fifth probability inquiry requires us to look to the evidence	12
and theories presented by the prevailing party at trial and conclude that if the	13
extraneous material supported those theories, a reasonable probability arises that the	14
extraneous material affected the jury. But this construction of Kilgore would focus	15
entirely on prejudice—in the present case, that the Index unfairly reinforced	16
Defendants’ case—without any consideration of the strength of the evidence. The	17
Kilgore Court instead framed the analysis to consider the probable prejudicial impact	18
of the extraneous material in light of the strength of the prevailing party’s case. 2010-	19
NMSC-040, ¶¶ 21, 23. We thus consider the strength of the evidence and then	20

13
whether in light of that evidence, a reasonable probability arises that the extraneous	1
material affected the jury’s verdict.	2
C. 	The Strength of Defendants’ Evidence and the District Court’s Decision	3
{15} 	Defendants presented evidence to support its defense, and on appeal, Plaintiffs	4
raise no challenge to the sufficiency of that evidence. Multiple experts testified that	5
other parties, including Mr. Warmuth, acted negligently or were the primary cause	6
of the accident. Another expert testified that Defendants met the requisite standards	7
of care with regard to negligence and products liability. Nevertheless, Plaintiffs	8
argue that the jury’s exposure to the Index “encouraged” a decision “based on	9
evidence that was not produced in open court, exactly the opposite of what the jury	10
instructions require” and that the Index therefore unfairly reinforced Defendants’	11
case. To the contrary, however, the trial record and the verdict suggest that the jury	12
was persuaded by Defendants’ evidence that they breached no duty and took no	13
unreasonable risk rather than by the titles of documents that they were instructed not	14
to consider. See Jolley, 2008-NMCA-164, ¶ 28 (presuming that juries understand	15
and comply with instructions).	16
{16} 	Our inquiry is whether the denial of Plaintiffs’ motion for a new trial, based	17
on the jury’s receipt of extraneous material, was an abuse of discretion. See Kilgore,	18
2010-NMSC-040, ¶ 20. To deny Plaintiffs’ motion, the district court considered (1)	19
the nature of the Index as a list of exhibits rather than the exhibits themselves; (2)	20

14
the relationship between the collateral source listings and the jury’s no-liability	1
verdict; (3) Plaintiffs’ evidence that Mr. Warmuth was injured on the job; (4)	2
Defendants’ question suggesting that collateral source benefits may have been	3
received, and the district court’s midtrial follow-up instruction not to consider	4
“employment related benefits”; and (5) the curative instruction that followed the	5
discovery that the jury had received the Index. For the reasons we have explained,	6
considering the strength of Defendants’ case as supported by the evidence at trial,	7
the district court’s analysis was not “clearly against the logic and effect of the facts	8
and circumstances of the case” and did not “misapprehend[] or misappl[y] the law.”	9
See Lymon, 2021-NMSC-021, ¶ 12.	10
{17} 	Plaintiffs remaining arguments do not dissuade us. Plaintiffs argue that the	11
district court should have held an evidentiary hearing and that submission of the	12
Index violated their constitutional right to a fair trial. As to the first, although	13
Plaintiffs initially requested an evidentiary hearing, at the motion hearing, Plaintiffs	14
agreed that the district court “ha[d] enough information . . . to make this decision”	15
and did not “need an evidentiary hearing.” Thus, though Kilgore recommends an	16
evidentiary hearing to allow a party seeking a new trial the “opportunity to find out	17
whether the intrusion affected the jury’s deliberations and thereby its verdict,”	18
Plaintiff waived this opportunity. See 2010-NMSC-040, ¶ 28 (alteration, internal	19
quotation marks, and citation omitted); cf. State v. Chavarria, 2009-NMSC-020, ¶ 9,	20

15
146 N.M. 251, 208 P.2d 896 (recognizing that even statutory and constitutional	1
rights are subject to waiver). As for Plaintiffs’ constitutional argument, the entire	2
Kilgore 	test is rooted in due process protections. 	See 	2010-NMSC-040, ¶ 13	3
(“[U]nauthorized communications to the jury in state courts must be judged by the	4
federal 	requirements of due process.” (internal 	quotation marks 	and 	citation	5
omitted)). It is clear that “due process does not require a new trial every time a juror	6
has been placed in a potentially compromising situation” but instead requires only	7
“a jury capable and willing to decide the case solely on the evidence before it.” Id.	8
¶ 28 (internal quotation marks and citation omitted). In Kilgore, to safeguard this	9
right, our Supreme Court mandated that the three-part test that we have described be	10
used to determine whether due process requires a new trial. Id. ¶¶ 21, 24-25, 28.	11
Because we conclude that the district court used the appropriate test and did not	12
otherwise abuse its discretion, we also conclude that no due process violation	13
occurred.	14
{18} 	Plaintiffs argue that the district court strayed from the Kilgore analysis and	15
improperly turned to Mann. We disagree. The district court analyzed Plaintiffs’	16
argument and arrived at the final conclusion based on the Kilgore factors. The	17
district court cited Mann to observe that “jurors may rely on their own backgrounds	18
and common sense” and analogized the present case to the facts from Mann, in which	19
a juror relied on his experience with probability calculations. See 2002-NMSC-001,	20

16
¶¶ 27, 30. In that context, our Supreme Court concluded that jurors who use	1
experience in line with the expert testimony presented at trial do not bring	2
“extraneous prejudicial information” before the jury. Id. ¶ 35. The district court	3
considered this evaluation in Mann to be akin to the jurors using their life experience	4
to interpret the references to worker’s compensation that had been scattered	5
throughout the trial. While Kilgore repudiated any presumption of prejudice that was	6
referenced in Mann, our Supreme Court has not overruled Mann. Kilgore, 2010-	7
NMSC-040, ¶¶ 1, 29. The Mann Court itself cast doubt on the presumption of	8
prejudice. 2002-NMSC-001, ¶ 36. We therefore discern no error in the district	9
court’s analogy to Mann.	10
{19} 	In summary, Plaintiffs established the first two Kilgore requirements but not	11
the third. The Index reached the jury and it related to the matter being tried. See	12
2010-NMSC-040, ¶ 21 (describing the first two Kilgore requirements as follows:	13
“(1) material extraneous to the trial actually reached the jury, [and] (2) the	14
extraneous material relates to the case being tried”). As to the third requirement,	15
whether “it is reasonably probable that the extraneous material affected the jury’s	16
verdict or a typical juror,” id., several factors weigh in favor of a new trial. The Index	17
was sent to the jury, likely at the start of deliberations, and the jury had access to and	18
viewed the titles for at least two hours before reaching a verdict. See id. ¶ 23. But	19
the fifth factor weighs very heavily against a new trial. Given the overall strength of	20

17
Defendants’ evidence, the prompt curative instruction, the subject matter of the	1
extraneous information, and the basis for the verdict, it is not probable that the Index	2
affected the jury’s verdict. See id. (describing the fifth Kilgore factor). In the present	3
case, but maybe not every case, this fifth probability factor is the most persuasive to	4
determine objectively that there is not a reasonable probability that the extraneous	5
material affected the jury’s verdict. See id. ¶ 21. The jury entered a no-liability	6
verdict after hearing evidence over eight days, from dozens of witnesses, including	7
multiple experts and Plaintiffs themselves. Under these circumstances, the district	8
court did not abuse its discretion in denying the motion for a new trial.	9
II. 	Defendants’ Cost Bill	10
{20} 	On cross-appeal, Defendants argue that the district court erred when it denied	11
their cost bill. In relevant part, under Rule 1-054(D)(1) NMRA, “costs, other than	12
attorney fees, shall be allowed to the prevailing party unless the court otherwise	13
directs.” See Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 103, 134 N.M. 77, 73	14
P.3d 215 (“The [r]ule, therefore, creates a presumption that the prevailing party is	15
entitled to costs.”). In order for an objecting party to overcome the presumption of	16
paying costs to the prevailing party, the objecting party must show “bad faith on [the	17
prevailing party’s] part, misconduct during the course of the litigation, that an award	18
to [the prevailing party] would be unjust, or that other circumstances justify the	19
denial or reduction of costs.” Key v. Chrysler Motors Co. (Key II), 2000-NMSC-	20

18
010, ¶ 6, 128 N.M. 739, 998 P.2d 575; see also Helena Chem. Co. v. Uribe, 2013-	1
NMCA-017, ¶ 54, 293 P.3d 888 (noting that “[a]dditionally, the district court, upon	2
a 	showing 	of 	equitable 	grounds, 	may 	restrict, 	apportion, or 	disallow 	costs”	3
(alterations, internal quotation marks, and citation omitted)). This Court defers to the	4
district court’s “discretion in assessing costs, and its ruling will not be disturbed on	5
appeal unless it was an abuse of discretion.” Key II, 2000-NMSC-010, ¶ 7 (internal	6
quotation marks and citation omitted). Evidence, however, must support the district	7
court’s determination that the presumption in favor of costs has been overcome. See	8
id. ¶ 9 (concluding that no evidence supported the district court’s findings that the	9
cost presumption had been rebutted). Defendants argue that Plaintiffs did not	10
overcome the presumption that the prevailing party is to be awarded costs, that the	11
district court abused its discretion in finding that Plaintiffs did overcome the	12
presumption, and that the district court otherwise “foreclosed” the opportunity for	13
Defendants to conduct discovery to investigate Plaintiffs’ financial situation. We	14
turn to the record to evaluate these arguments. See id. (considering the evidence in	15
the record to support the district court’s findings related to the denial of costs).	16
{21} 	Following the entry of final judgment, Defendants requested recovery of	17
costs. Plaintiffs sought an extension of time to file objections—essentially, Plaintiffs	18
wanted the district court to rule on the motion for a new trial before they filed	19
objections to the cost bill. The district court denied the motion for a new trial on	20

19
November 20, 2023, and Plaintiffs filed objections to the cost bill on December 4,	1
2023. In their objection to Defendants’ cost bill, Plaintiffs argued that they could not	2
pay the bill and that the disparity of resources between the parties counseled against	3
a cost award. Plaintiffs included an affidavit from Mr. Warmuth as well as evidence	4
about Defendants’ financial achievements in 2022. The day after Plaintiffs filed the	5
objections, the district court set a hearing for December 19, 2023.	6
{22} 	Defendants did not file a written response to Plaintiffs’ objections, but at the	7
hearing, argued that Plaintiff had not provided a complete financial picture—the	8
affidavit about Plaintiffs’ financial situation did not include pretrial settlements with	9
two other parties or financial assistance that Plaintiffs had received. Defendants	10
stated that if Plaintiffs “would insist in the argument that [Plaintiffs] have no money,	11
[Defendants] will submit [they’re] entitled to discovery on [Plaintiffs’] financial	12
condition under Rule 1-069(A) [NMRA].” Plaintiffs argued costs should be denied	13
based on Defendants’ misconduct regarding the Index, financial inability to pay,	14
disparity of income, and the chilling effect that a punitive costs award could have on	15
the public’s ability to test whether companies were meeting their duties regarding	16
product quality.	17
{23} 	During Plaintiffs’ argument, the district court asked why the settlements with	18
other parties were not relevant, and Plaintiffs responded that if the court was “asking	19
for the settlement agreement . . . it could be provided.” Plaintiffs also noted that it	20

20
had been five months since the entry of judgment, and Defendants had not sought	1
the settlement agreement. Defendants explained that no discovery about indigency	2
had been conducted because they would not “possibly have imagined that [Plaintiffs]	3
would claim indigency” when Defendants had “reason to believe” the settlement	4
was “between two and three million.” The district court rejected Plaintiffs’ argument	5
that Defendants engaged in any misconduct regarding the Index and instead	6
determined that “financial disparity” and “the chilling effect on future litigation”	7
justified denying costs to Defendants. Specifically, the district court stated,	8
All right, the Court has reviewed all of the pleadings and the case law	9
and—specifically in Apodaca—in Apodaca, the settlement with [a third	10
party] was part of the litigation and the court had looked at that sealed	11
agreement in camera regarding an evidentiary hearing. Here, we just	12
don’t have that. I’m not going to ask to inspect that settlement	13
agreement. I’m also not going to find—regarding misconduct, I don’t	14
know that I think that it was any type of intentional. However, I am	15
persuaded based on the financial disparity and the court’s concern	16
that—and it was addressed in several of the cases, specifically in some	17
of the federal cases—the court can consider the chilling effect on future	18
litigation. So, I am going to deny the cost bill at this time based on the	19
financial disparity of the parties alone. And that’s my sole reason.	20
After the oral ruling, the parties could not agree on the form of order.	21
{24} 	At the presentment hearing on the order, Plaintiffs argued that the district	22
court’s ruling on financial disparity encompassed their inability to pay, and	23
Defendants maintained that district court’s only basis for denying costs must have	24
been the disparity of wealth between the parties because the district court declined	25
to review the terms of the settlement agreement. The district court stated,	26

21
Is it fair to say that neither party presented me with the settlement	1
agreement? Because neither party did. You argued that it was a large	2
settlement. You opined that it was several figures. I believe [Plaintiffs]	3
objected because it was a sealed agreement and how would you know	4
how many figures it was. So, neither party presented me with that	5
settlement agreement to consider.	6
Defendants agreed that the district court had not seen the settlement agreement—	7
and noted that they also had not seen the agreement and that the district court	8
“declined at the hearing” to review the document in camera. The district court	9
observed that “it was probably inherent in [the court’s] statement that disparate	10
resources includes an inability to pay.” The district court continued and explained	11
that it did not review the settlement agreement in camera because “no one else had	12
seen it,” the court did not “want any surprises,” and the parties to the settlement “had	13
not specifically given permission for the court to review it in camera.” The written	14
order denying Defendants’ cost bill gives three reasons: inability to pay, disparity of	15
income, and the threat of chilling future products liability litigation.	16
{25} 	These three bases for the district court’s decision demonstrate that contrary to	17
Defendants’ argument, the district court did not conflate the ability to pay with	18
disparity of income. It is well established that denial of costs is not justified by a	19
disparity of resources without consideration of the objector’s ability to pay.	20
Apodaca, 2003-NMCA-085, ¶ 103. Despite the ambiguity of the oral ruling at the	21
costs hearing, the district court explained at the presentment hearing that the	22
intention had been to include an inability to pay within the concept of disparity of	23

22
resources. The written order reflected that the denial of costs was based on more	1
than disparity of income alone but also included a finding that Plaintiffs could not	2
pay, as approved by this Court in Apodaca.2
3
{26} 	The record and the evidence presented with the objections to Defendants’ cost	4
bill support the district court’s determination that Plaintiffs could not pay. As the	5
district court noted, neither party actually presented the settlement agreement for any	6
type of review by the court. See id. (rejecting an argument that the district court	7
abused its discretion by not considering a settlement when the party never requested	8
that the court order the disclosure of the settlement). Before and throughout the trial,	9
the district court heard evidence from both parties about collateral source benefits	10
for both Plaintiffs, including workers’ compensation and social security benefits.	11
The district court knew that Plaintiffs settled with MCT. The parties provided notice	12
to the district court of the MCT settlement and the settlement was raised during the	13
litigation over collateral source payments. And as we have set forth, the parties	14
discussed the fact of settlement during the litigation about costs. The district court	15
received evidence in the affidavit that Mr. Warmuth would likely require nearly $1	16
2 Because the district court found that Plaintiffs had an inability to pay, we are
unpersuaded by Defendants’ position that the disparity of financial resources did not
correlate to a disparity of legal resources. The disparity of income is not irrelevant
if Plaintiffs cannot pay a judgment, despite the availability of comparable legal
resources. See Key II, 2000-NMSC-010, ¶ 15 (“[D]isparity of wealth between the
parties, without additional evidence of the losing party’s inability to pay or bad faith
of the prevailing party, is not enough to justify a reduction in the cost award.”).

23
million for future medical needs, that he had lost $41,206 per year in the ability to	1
earn income, and that he and his wife’s combined income would be between	2
approximately $14,660 and $24,235. Mr. Warmuth’s affidavit stated that he had	3
difficulty maintaining employment after the accident, that his wife could not work	4
because he needed care, that their income derived from disability benefits, and they	5
used their $50,000 in savings for living expenses. Mr. Warmuth confirmed that he	6
and his wife would need to file for bankruptcy if ordered to pay costs.	7
{27} 	Defendants’ argument assumes that the district court disregarded all of this	8
information. But the evidence also supports a contrary conclusion that even if	9
Plaintiffs received these other sources of income, they still had insufficient funds to	10
cover the cost bill and meet the ongoing medical and subsistence needs. Thus, we	11
decline to hold that the district court must know the exact settlement amount to	12
determine inability to pay—if the record otherwise supports inadequate income,	13
which in the present case, it did. See Apodaca, 2003-NMCA-085, ¶¶ 106-108	14
(affirming the denial of costs based on evidence that the plaintiff could work only	15
part time, had income a little over $15,000 a year, and expected to incur future	16
medical costs); Gallegos ex rel. Gallegos v. Sw. Cmty. Health Servs., 1994-NMCA-	17
037, ¶¶ 23, 31, 117 N.M. 481, 872 P.2d 899 (affirming the denial of costs when the	18
plaintiffs argued that they would be forced to file for bankruptcy if ordered to pay	19
costs); cf. Key II, 2000-NMSC-010, ¶ 9 (reversing the denial of costs when no	20

24
evidence supported the inability to pay); State ex rel. Udall v. Wimberly, 1994-	1
NMCA-121, ¶ 18, 118 N.M. 627, 884 P.2d 518 (affirming the award of costs when	2
the objector owned four companies and did not present evidence that separated	3
personal from company finances).	4
{28} 	Defendants argue that “the district court lacked a key piece of evidence (the	5
amount of the MCT settlement) when it made the necessary findings about Plaintiffs’	6
finances.” Defendants cite Chief Judge Hartz’s separate opinion in Key v. Chrysler	7
Motors Corp. (Key I), which noted the lack of evidence of the objecting party’s	8
“personal wealth” or “financial condition.” 1999-NMCA-028, ¶ 25, 127 N.M. 38,	9
976 P.2d 523 (Hartz, C.J., concurring in part and dissenting in part), rev’d in part	10
2000-NMSC-010, ¶ 22. Our Supreme Court agreed that the objecting party in Key	11
had provided no evidence at all, apart from an inaccurate characterization of the	12
evidence, to establish the inability to pay. Key II, 2000-NMSC-010, ¶ 14. Neither	13
Chief Judge Hartz nor our Supreme Court identified specific evidence that was	14
necessary in order to substantiate the inability to pay. Defendants advocate for the	15
stringent requirements set forth in federal cases, “a fair and accurate balance sheet”	16
that reflects expenses, liabilities, assets, and income—but the district court credited	17
Plaintiffs’ 	evidence, 	including 	Mr. 	Warmuth’s 	affidavit, 	that 	their 	available	18
resources were insufficient to pay a cost award. Put another way, Defendants	19
assumed that the settlement money changed Plaintiffs’ financial picture but Mr.	20

25
Warmuth’s affidavit attested to the contrary, and Defendants did not present any	1
rebuttal evidence.	2
{29} 	Defendants respond that the district court foreclosed the opportunity to do so	3
and 	suggest 	that 	Plaintiffs 	should 	have 	provided 	additional 	evidence 	at 	the	4
presentment hearing. Defendants contend that they asked for “an opportunity to learn	5
the amount of the MCT settlement” and that a five-minute recess could have resolved	6
the 	matter. 	At 	the 	costs 	hearing, 	however, 	Defendants 	acknowledged 	the	7
confidentiality of 	the 	settlement 	amount 	“between 	Plaintiffs 	and 	MCT” 	and	8
Defendants submitted that they “were entitled to discovery” regarding Plaintiffs’	9
“financial condition under Rule 1-069(A).” Rule 1-069 permits the court to issue a	10
subpoena for in-court questioning of “any person with knowledge that will aid in	11
enforcement of or execution on the judgment” or discovery “in any manner provided	12
in these rules.” Contrary to Defendants’ position on appeal, the type of discovery	13
they contemplated at the costs hearing involved a subpoena or a discovery request	14
for confidential information and not merely a recess. Defendants requested no such	15
subpoena and made no discovery request. The district court indicated only that the	16
court would not ask to see the settlement but gave no indication that Defendants	17
would be foreclosed from pursing the information. By the time of the presentment	18
hearing, the district court had already credited Plaintiffs’ evidence that they could	19

26
not pay, and Plaintiffs had no reason to supply more evidence nor did Defendants	1
offer any rebuttal or request more time.	2
{30} 	Apart from the settlements and income, Defendants argue that the costs should	3
not have been denied based on any chilling effect on litigation and that individuals	4
should be discouraged from pursuing the type of untenable claims that they assert	5
Plaintiffs brought. Because we conclude that the evidence supports the district	6
court’s findings related to Plaintiffs’ inability to pay and the disparity of the parties’	7
income, we need not consider Defendants’ policy arguments.	8
{31} 	The district court based its reasoning on evidence of Plaintiffs’ inability to pay	9
and the disparate resources of the parties. As a result, we conclude that the district	10
court did not abuse its discretion in denying Defendants’ cost bill.	11
CONCLUSION	12
{32} 	We affirm.	13
{33} 	IT IS SO ORDERED.	14
______________________________	15
KATHERINE A. WRAY, Judge	16
WE CONCUR:	17
_____________________________________	18
JACQUELINE R. MEDINA, Chief Judge	19
_____________________________________	20
ZACHARY A. IVES, Judge	21