November 12, 2009 – Donna S. Shadoan v. Cities of Gold Casino, Pojoaque Gaming, Inc., and Pueblo of Pojoque, No. 28,924

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: November 12, 2009

NO. 28,924

DONNA S. SHADOAN,
Plaintiff-A ppellee,

V.

CITIES OF GOLD CASINO,

POJ OAQUE GAMING, INC.,

and PUEBLO OF POJ OAQUE,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Timothy L. Garda, District Judge

Voorhees Law Firm
Scott F. Voorhees
Santa Fe, NM

for Appellee

Ray A. Padilla, P.C.
Ray A. Padilla

Albuquerque, NM

Arlyn G. Crow, P.C.
Arlyn G. Crow

Albuquerque, NM

for Appellants

OPINION
ROBLES, Judge.
{1} 	Cities of Gold Casino, Pojoaque Gaming, Inc., and Pueblo of Pojoaque
(Defendants) appeal a district court order granting Donna Shadoan (Plaintiff) a new
trial. We hold that jurors’ affidavits that evidence a misunderstanding of instructions
or process in reaching a verdict that might have produced a different verdict do not
evidence a clerical error in the verdict and are not permissibly considered under Rule
11-606(B). Since the district court considered such evidence, we reverse.
I. 	BACKGROUND
{2} 	On December 9, 2001, at approximately 7:00 p.m., Plaintiff was robbed and
injured in the parking lot of the Cities of Gold Casino as she was getting out of her
car. Plaintiff filed suit against Defendants “based on the lack of security in the casino
parking lot.” The record reflects that the jury heard expert testimony from Plaintiff
and Defendants regarding dizziness that Plaintiff has experienced since the attack.
During closing arguments, Plaintiff urged the jury that she was entitled to $448,500
in compensatory damages arising from the assault for lost income and pain and
suffering, as well as medical expenses totaling $9,568. After deliberation, the jury
returned a verdict for Plaintiff in the amount of $4,784 and found that Defendants
were 20% responsible for Plaintiff’s injuries. The transcript reveals that the district

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judge reviewed the verdict, read it in open court, then asked the foreperson if his
reading was “correct and accurate as to the verdict of [the] jury” to which the
foreperson replied with an affirmative response. The district judge then concluded the
case and discharged the jury.
{3} 	Following the proceedings, the district judge met with the jury in the jury room
for a debriefing. While there is no record of the post-trial debriefing, it would appear
that the jury told the judge that they had intended to give Plaintiff half of her medical
expenses and 20% of the $448,500 that Plaintiff had asked for in closing arguments.
The judge responded by stating that the jury had to speak to the attorneys for the
parties. Following the debriefing, one of the jurors approached both parties, who were
apparently still in the building at the end of the trial and told the parties about the
confusion surrounding the verdict form.
{4} 	On March 20, 2008, Plaintiff filed a motion for additur or, in the alternative,
new trial, and attached three essentially identical affidavits from three jurors. 	The
affidavits stated, in pertinent part:
2. 	I served as a juror in the trial of the case of [Plaintiff] versus
[Defendants] from February 26, 2008 through February 29, 2008,
during trial of the case, and jury deliberations on March 4, 2008
and March 5, 2008.
3. 	During closing argument[,] the attorney for [Plaintiff] asked the
jury to award her $120,000[] in lost income and $328,500[] for a

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total of $448,500[].
4. 	After much deliberation[,] the [j]ury decided that [Defendants]
[were] 20% at fault for [Plaintiff’s] injuries. We also decided that
[Plaintiff] should receive $4,784[] as one half of her medical bills.
5. 	When we filled out the Verdict[,] we placed 20% fault on
[Defendants] and intended that [Plaintiff] should receive 20% of
the $448,500[] her attorney asked the jury for.
6. 	After the verdict was read in court and the jury was discharged,
[the trial judge] met with the jury in the jury room. In the course
of the conversation[,] we explained to him that we intended to
give [Plaintiff] 20% of the full damages that her attorney asked for
plus one half of the medical bills. 	The jury intended the full
award to be $89,600[] plus $4,784[] for a total award of $94,384[].
7. 	When we were talking to [the trial judge,] we first realized that the
verdict form had been filled out incorrectly because it only gave
[Plaintiff] 20% of $4,784[]. The verdict form did not reflect the
intention of the jury.
(Emphasis added.)
{5} 	At the hearing on Plaintiff’s motion, the district judge made clear he would not
grant additur. Plaintiff did not pursue the point further and does not argue for additur
on appeal. Additionally, in his order granting a new trial, the district judge stated that
he was not considering what the jury told him during the debriefing in reaching his
decision. It was specifically the difference between the dollar amounts set forth in the
verdict form and the three affidavits that convinced the court to exercise equitable
jurisdiction and to grant Plaintiff a new trial based on equity. In the same order, the

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district judge allowed an application for interlocutory appeal in accordance with
NMSA 1978, Section 39-3-4 (1999) on the issue of whether the district court had
exceeded its equitable authority by granting a new trial.
II. 	DISCUSSION
{6} 	Defendants argue that Rule 11-606(B) prohibits juror testimony or affidavits
that seek to impeach the verdict of the jury, and it was error for the district judge to
consider the affidavits in his decision to grant a new trial. The admission of evidence
is reviewed under an abuse of discretion standard. 	However, the review of the
interpretation of the rule behind the ruling is a matter of law, which we review de
novo. See Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 13, 146 N.M. 453, 212
P.3d 341.
{7} 	Rule 11-606(B) states:
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 or emotions as influencing the juror to assent to or dissent
from the verdict or indictment 	or concerning the juror’s mental
processes in connection therewith. 	But a juror may testify about (1)
whether extraneous prejudicial information was improperly brought to
the jury’s attention, (2) whether any outside influence was improperly
brought to bear upon any juror, or (3) whether there was a mistake in
entering the verdict onto the verdict form. 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.

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(Emphasis added.)
{8} 	The third exception to the rule was incorporated into the New Mexico Rules of
Evidence by Supreme Court Order 07-8300-35, effective February 1, 2008. As the
Committee Commentary for that rule notes:
Paragraph B was amended to be consistent with the 2006 amendments
to federal rule 606(b). 	The amendments include a third, narrow
exception to the general prohibition against permitting jurors to testify
about their verdicts or indictments. 	The third exception permits the
correction of clerical errors in the verdict form to reflect the true intent
of the jurors. 	The committee believes this to be consistent with New
Mexico law.
The question then is what constitutes a clerical error. Because New Mexico’s rule
mirrors the federal rule, this Court may look to federal law for further guidance in
interpreting New Mexico’s Rule 11-606(B). 	See Rios v. Danuser Mach. Co., 110
N.M. 87, 90, 792 P.2d 419, 422 (Ct. App. 1990); Duran v. Lovato, 99 N.M. 242, 247,
656 P.2d 905, 910 (Ct. App. 1982).
{9} 	Before the 2006 Amendment to Federal Rule 606(b), there was a split in
opinion among the circuits as to what constituted a clerical error. See McCullough v.
Consol. Rail Corp., 937 F.2d 1167, 1169 (6th Cir. 1991). One line of cases held that,
where a court seeks to correct a mistake in transmission of the verdict from the jury,
evidence in the form of jurors’ affidavits and testimony may be received. See, e.g.,
Attridge v. Cencorp Div. of Dover Techs. Int’l, Inc., 836 F.2d 113, 117 (2d Cir. 1987)

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(holding that jurors’ interviews obtained after the jury was discharged were proper
because they were used to ascertain what the verdict was, not why the jury decided
what it did); Eastridge Dev. Co. v. Halpert Assocs., Inc., 853 F.2d 772, 783 (10th Cir.
1988) (concluding that the amending of a verdict by the trial court in light of jurors’
interviews was proper because it sought to reflect the true decision of the jury).
{10} 	However, another line of cases followed the narrower interpretation that “juror
testimony regarding an alleged clerical error, such as announcing a verdict different
than that agreed upon, does not challenge the validity of the verdict or the deliberation
of mental processes, and therefore is not subject to Rule 606(b),” but “juror testimony
to prove that the jurors were operating under a misunderstanding about the
consequences of the result that they agreed upon” is prohibited. Fed. R. Evid. 606(b)
2006 Amendment notes. 	See, e.g., Karl v. Burlington N. R.R. Co., 880 F.2d 68, 75
(8th Cir. 1989) (concluding that it was error to receive jurors’ testimony on whether
a verdict was the result of the jury’s misunderstanding of instructions because it
related to how the jury interpreted the court’s instructions and concerned the jurors’
“mental processes”); Robles v. Exxon Corp., 862 F.2d 1201, 1208 (5th Cir. 1989)
(stating that a “clerical error” is one in which the foreperson mistakenly writes down
a number or word that is different than what the jury had actually agreed upon, not
what the jury had intended or interpreted from the court’s instructions). The 2006

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Amendment to Rule 11-606(B) specifically chose to follow the latter.
{11} 	In the immediate case, the affidavits explain what the intentions of the jury
were, but they do not state that what was written on the verdict form was not what the
jury agreed on. As the Robles court noted:
The error here is not “clerical,” as would be the case where the jury
foreperson wrote down, in response to an interrogatory, a number
different from that agreed upon by the jury, or mistakenly stated that the
defendant was “guilty” when the jury had actually agreed that the
defendant was not guilty. Rather, the error alleged here goes to the
substance of what the jury was asked to decide, necessarily implicating
the 	jury’s 	mental 	processes 	insofar 	as 	it 	questions 	the 	jury’s
understanding of the court’s instructions and application of those
instructions to the facts of the case.
862 F.2d at 1208 (footnote omitted).
{12} 	New Mexico common law is consistent with this interpretation of the clerical
error exception. In McKinney v. Smith, our Supreme Court held that jurors’ affidavits
obtained after the jury was discharged could not be used to show what the jury had
intended the plaintiff’s award to be. 63 N.M. 477, 478-79, 322 P.2d 110, 111 (1958).
The court stated that if there was doubt as to the jury’s verdict, the trial court “should
have returned [the jury] to the jury room and have them amend their verdict.” Id. at
479. Likewise, in Hood v. Fulkerson, the court held that post-verdict jury statements
could not be used by the trial court to amend the verdict and adjust the plaintiff’s
award. 102 N.M. 677, 679, 699 P.2d 608, 610 (1985). There, the court concluded

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that it was the province of the jury to arrive at a verdict, and affidavits stating what the
jury had intended the award to be simply did not allow the trial court to correct the
verdict. 	Id. at 679. 	Finally, in Goldenberg v. Law, New Mexico observed that
allowance of juror affidavits to impeach a verdict could give a single individual the
power “to set aside the verdict by his own affidavit.” 17 N.M. 546, 556, 131 P. 499,
501-02 (1913).
{13} 	The policy reasons behind Rule 606 are relevant here. As the rule stands now,
it protects jurors from harassment by a party who may wish to reopen or relitigate a
case and would require the jury’s continued involvement long after a verdict was
reached. See McKinney, 63 N.M. at 479, 322 P.2d at 111; see also Karl, 880 F.2d at
74. 	Moreover, jury 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. See Con’t Cas. Co. v. Howard, 775 F.2d
876, 885 (7th Cir. 1985). The rule also dissuades fraud, promotes finality in litigation,
and preserves the “community’s trust in a system that relies on the decisions of
laypeople [that] would all be undermined by a barrage of post[-]verdict scrutiny.”
United States v. Benally, 546 F.3d 1230, 1234 (10th Cir. 2008) (alteration in original)
(internal quotation marks and citations omitted). 	To hold otherwise would make
deliberations reviewable, and the final authority of a verdict would not be by jury, but

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by a reviewing court. Id. at 1233.
{14} 	To the extent that Plaintiff encourages this Court to adopt a broader
interpretation of the rule’s exception, we decline to do so. In the process of a jury
trial, there will always be the possibility that jurors will misunderstand the law or
consider improper factors in reaching a verdict. However, “the social costs of such
error are outweighed by the need for finality to litigation, to protect jurors from
harassment after a verdict is rendered, and to prevent the possible exploitation of
disgruntled ex-jurors.” Peveto v. Sears, Roebuck & Co., 807 F.2d 486, 489 (5th Cir.
1987) (footnote omitted). 	The rule against the admission of affidavits of jurors to
vitiate a verdict is founded upon considerations of public policy and, absent an
exception to the rule, it should not be departed from to afford relief in supposed hard
cases. See Goldenberg, 17 N.M. at 556, 131 P. at 502.
{15} 	As a final point, we note that the potential for errors in verdict forms could be
greatly reduced by polling of the jury after verdict, an event that did not happen here.
See Fed. R. Evid. 606(b) 2006 Amendment notes (stating the advantages to polling a
jury after verdict). Although Plaintiff argues that the district judge did not allow her
an opportunity to poll the jury, a review of the record leads us to the opposite
conclusion. We primarily note that the district judge specifically asked Plaintiff after
the verdict was read if there were “any issues for the record before I excuse everyone,”

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at which time, Plaintiff did not ask for the jury to be polled. Additionally, while a
party in a civil case may be entitled as a matter of right to have the jury polled upon
making a proper request, see Levine v. Gallup Sand & Gravel Co., 82 N.M. 703, 704,
487 P.2d 131, 132 (1971), Plaintiff does not argue and has not demonstrated that it is
the district court’s burden to make the request for the parties and ensure that an answer
is provided and preserved for the record.
{16} 	Having concluded that the jurors’ affidavits should have been stricken, we now
turn to whether the district court erred in granting a new trial under the facts of this
case. A district court has discretion in setting aside a judgment, and this Court will
not interfere absent a showing of an abuse of that discretion. Phelps Dodge Corp. v.
Guerra, 92 N.M. 47, 51, 582 P.2d 819, 823 (1978). A trial court abuses its discretion
in granting a new trial when there is no proper showing of material grounds to support
the claims on which the application for relief depends. See Rios, 110 N.M. at 91, 792
P.2d at 420.
{17} 	As an initial matter, we notice that Plaintiff does not argue that the district judge
relied on his own interactions with the jury in granting a new trial. See Rule 11-605
NMRA (“The judge presiding at the trial may not testify in that trial as a witness.”);
Rule 11-606(B) (“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

11
testifying.”). Likewise, the district judge stated in his order that he was not relying on
the events that occurred during the jury debriefing in reaching his decision to grant a
new trial. As we stated above, the district court appears to have relied solely on the
difference between the dollar amounts in the affidavits and the verdict form. 	We
conclude that because the affidavits were precluded by Rule 11-606(B), and the record
does not otherwise support the existence of an error in the verdict form, there were no
grounds for the district court to grant a new trial in this case.
{18} 	Last, Plaintiff argues that the mistaken verdict does not provide adequate
compensation because it awarded only medical bills and, citing to 	Martinez,
2004-NMSC-006, ¶ 21, Plaintiff urges that the verdict as it stands disregards
Plaintiff’s pain and suffering. However, the jury set Plaintiff’s damages at $4,784 on
a verdict form that did not itemize damages, but merely provided a lump-sum award.
Without some way of determining what amount the jury intended to give in pain and
suffering damages, this Court is left to speculate as to what the amounts might have
been. 	“[I]t is not the duty of the appellate court to evaluate the value of pain and
suffering” even if the jury’s award “appears quite miserly.” Baxter v. Gannaway, 113
N.M. 45, 49, 822 P.2d 1128, 1132 (Ct. App. 1991). Given the conflicting testimony
of this case and the weight of the evidence presented, we cannot say that the jury’s
verdict shocked the conscience of the district court, especially in light of the fact that

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the district judge did not grant a new trial until weeks later and specifically cited his
reason as being the irreconcilable monetary amounts.
III. 	CONCLUSION
{19} 	The district court erred in considering the post-verdict jurors’ affidavits. We
therefore remand this case to the district court with instructions to reinstate the
original verdict and to enter judgment for Plaintiff in the amount of 20% of $4,784.
{20} 	IT IS SO ORDERED.
_______________________________
ROBERT E. ROBLES, Judge
I CONCUR:
_________________________________
RODERICK T. KENNEDY, Judge
MICHAEL D. BUSTAMANTE, Judge (specially concurring)

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Bustamante, Judge (specially concurring).
{21} 	I specially concur in the result reached by the majority. The committee
commentary to the federal counterpart to our Rule 11-606(B) in particular makes it
clear that only pure transcription errors will be recognized as “clerical” errors. I
write to emphasize just how narrow this approach is and how it will tend to stifle
any consideration of jury missteps which could be addressed without delving into
jury deliberations.
{22} 	In Attridge v. Cencorp Division of Dover Technologies International, Inc.,
836 F.2d 113 (2d Cir. 1987), for example, two jurors indicated to the bailiff that
the verdict delivered at the end of the trial was intended to represent a “net
recovery . . . after any reductions for comparative negligence, rather than an
unadjusted verdict.” Id. at 115. The bailiff reported the conversation to the judge
who reported the conversation to the parties. The following day the trial judge
spoke with the jurors asking them what their understanding as to what the verdict
was. The jurors unanimously agreed that the amounts written on the verdict forms
were meant to be net recoveries. The trial judge adjusted the final judgment to
reflect the jury reports.
{23} 	On appeal, the Second Circuit affirmed noting that the jury inquiry was
acceptable because the court was trying to determine what the jury actually agreed

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to. Citing to Mount Airy Lodge, Inc. v. Upjohn Company, 96 F.R.D. 378 (E.D. Pa.
1982), the court noted: “The interviews were proper because they were designed
to ascertain what the jury decided and not why they did so.” Attridge, 836 F.2d at
117.
{24} 	Under the rule we follow today, Attridge would result in a reversal even
though the jury unanimously agreed, in effect “we misread the instruction.”
{25} 	I submit that such a result would not serve the ends of justice and are not
necessary to protect the jury process and jurors from undue intrusion. Even Robles
—one of the cases most heavily relied upon by the federal rule committee
commentary—noted that the Fifth Circuit had held “that [R]ule 606([B]) does not
bar juror testimony as to whether the verdict delivered in open court was actually
that agreed upon by the jury.” 862 F.2d at 1207. Robles then went on to limit the
rule to the very narrow type of “clerical” error described by the committee
commentary we now follow. Robles does not explain, however, why its prior
formulations were not workable or why cases such as Attridge were wrong. Our
suggestions concerning polling the jury are valid, but polling will not correct a
jury’s simple misreading, for example, of a comparative negligence verdict form.
MICHAEL D. BUSTAMANTE, Judge

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APPENDIX
VERDICT
On the questions submitted, the jury finds as follows:
Question No. 1: 	Was [Defendant] negligent?
Answer: 	Yes[.]
If the answer to Question No. 1 is “No[,”] you are not to answer further questions.
Your foreperson must sign this special verdict, which will be your verdict for
[Defendant] and against [Plaintiff], and you will all return to open court.
If the answer to Question No. 1 is “Yes[,”] you are to answer Question No. 2.
Question No. 2: 	Was any negligence of [D]efendant a cause of [P]laintiff’s injurires
and damages?
Answer: 	Yes[.]
If the answer to Question No. 2 is “No[,”] you are not to answer further questions.
Your foreperson must sign this special verdict, which will be your verdict for
[Defendant] and against [Plantiff], and you will return to open court.
If the answer to Question No. 2 is “Yes[,”] you are to answer the remaining questions

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on this special verdict form. When as many as ten of you have agreed upon each of
your answers, your foreperson must sign this special verdict, and you will all return
to open court.
Question No. 3: 	In accordance with the damage instructions given by the court, we
find the total amount of damages suffered by [P]laintiff . . . to be $4,784[.] (Here[,]
enter 	the 	total 	amount 	of 	damages 	without 	any 	reduction 	for 	comparative
negligence[.)]
Question No. 4: 	Compare the negligence of the following persons and find a
percentage for each. The total of the percentages must equal 100%, but the percentage
for any one or more of the persons named may be zero if you find that such person
was not negligent or that any negligence on the part of such person was not a cause
of damage.
[Plaintiff] 	0%
Carlos Romero 	80%
[Defendant] 	20%
_____
100% TOTAL
The court will multiply the percentage of [D]efendant times [Plaintiff’s] total

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damages as found by the jury under Question No. 3. 	The court will then enter
judgment for [P]laintiff against [D]efendant in the proportion of damages as to that
defendant. If the percentage found by the jury for any one defendant is zero, then the
court will enter judgment for that defendant and against [P]laintiff as to that
defendant.