March 11, 2019- Norman Cutliff v. Vis-Com, Inc., No. A-1-CA-35601

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	NORMAN CUTLIFF,
3 	Plaintiff-Appellant,
4 	V. 	NO. A-1-CA-35601
5 VIS-COM, INC. and JAMES
6 HANCOCK,
7 	Defendants-Appellees.
8 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
9 Jeff Foster McElroy, District Judge
10 Atkins & Walker, P.C.
11 	Tyler J. Atkins
12 	Samuel H . Walker
13 	Albuquerque, NM
14 for Appellant
15 	Doughty, Alcaraz & deGraauw, P.A.
16 John Andrew deGraauw
17 Jeffrey M. Mitchell
18 	Albuquerque, NM
19 for Appellees
20 	MEMORANDUM OPINION
21 	B. ZAMORA, Judge.
22 	{I} 	Appellant Norman Cutliff appeals the district court' s decision admitting
23 	expert testimony,that he claims exceeded the scope of the expert' s qualifications and
24 	lacked a reliable evidentiary basis. Cutliff further contends the district court abused
Court of Appeals of New Mexico
Filed 3/11/2019 11:08 AM
Mark Reynolds

1 its discretion by failing to admit his medical records and denying his motions for
2 mistrial. We affirm.
3 BACKGROUND
4 	{2} 	Cutliff claims to have suffered concussion symptoms and neck and low back
5 pain after being rear-ended by a vehicle driven by James Hancock, who was driving
6 for his employer, Vis-Com, Inc. (collectively, Vis-Com), while Cutliff was stopped
7 at a red light behind another vehicle. Cutliff filed a complaint alleging negligence
8 against Vis-Com seeking damages for lost wages, pain and suffering, loss 	of
9 household services, and loss of enjoyment of life. Vis-Com ultimately stipulated to
10 	liability, but disputed causation and damages.
11 	{3} 	Prior to trial, Cutliff filed a motion to exclude the testimony of defense expert
12 	Dr. Joseph Peles, arguing that his opinion lacked a reliable basis and that Dr . Peles
13 	was not qualified to offer an opinion on medical causation. 1 The district court denied
14 the motion, ruling orally that biomechanical engineering is a recognized field, Dr.
15 	Peles' testimony would assist the jury, and that Cutliff would have the opportunity
16 to cross-examine Dr. Peles on the claimed lack of data supporting his conclusions.
17 	The district court's written order denying Cutliff's motion stated no additional
18 	grounds in support of its ruling.
1 Cutliff does 	not 	dispute 	Dr. 	Peles' 	qualifications 	as 	a biomechanical
engmeer.
2

1 {4} 	At 	trial, 	Dr. 	Peles 	was 	qualified, 	without 	objection, 	as 	an 	expert 	in
2 biomechanical engineering, occupant dynamics, and accident reconstruction. Dr.
3 Peles explained that a biomechanical engineer looks at the forces resulting from an
4 	accident and determines 	how those 	forces 	move the 	body and, 	based on that
5 movement, determines the potential for injury. Dr. Peles testified that he reviewed
6 photographs, deposition testimony, discovery responses, police reports, Cutliff's
7 medical records, and Cutliff's notes, along with data related to vehicle crashes,
8 dimensions and weight, and stiffness. He acknowledged he was not qualified to
9 render opinions on the medical causation of a specific injury, but opined that,
10 assuming the most severe impact that could result from this accident, it is highly
11 	unlikely Cutliff's head would have contacted the steering wheel, and the forces to
12 the head would be exceptionally low and unlikely to produce a concussion. Dr. Peles
13 	also explained that it is unlikely that the force to the back would trigger an injury
14 mechanism, and stated there is a "99.9 percent chance that someone would not have
15 	a low back injury from this worst-case severity." When asked on cross-examination
16 about his statement that there is "no mechanism ... for a head injury or a low back
17 	injury," Dr. Peles responded, "We talked in my deposition about degeneration in the
18 	low back. That's a likely candidate for that." Cutliff's counsel responded, "You're
19 not offering the jury an opinion that Mr. Cutliff has degenerative back disease, are
20 	you?" Peles replied, "Well, it's clear from his medical records. I'm not diagnosing
3

1 him, but he clearly does." Dr. Peles explained that "biomechanical engineers study
2 the progression of degeneration [of the back] and how compression causes [it]," but
3 when asked again if he was qualified to diagnose degenerative back disease, he
4 responded, 	"I didn't say I was. 	You were 	asking 	me 	from 	a biomechanical
5 viewpoint."
6 	{5} 	Dr. Peles also testified that the front bumper of Cutliff s vehicle had more
7 damage than the rear of his vehicle. When asked if this had any significance, he
8 responded, "It certainly could. It is ... consistent with [Cutliff s vehicle] contacting
9 [the first vehicle] first. I can't prove that without seeing [the first vehicle]." Cutliff s
10 	counsel objected and moved for a mistrial because Vis-Com had stipulated to
11 	liability before trial on the basis that Hancock was solely at fault for the crash. The
12 	district judge denied the motion but sustained the objection and instructed the jury
13 	to disregard this testimony.
14 	{6} 	In his closing argument to the jury, Vis-Com's attorney argued, "One other
15 	thing I think is really important for you guys to pay attention to-not a single medical
16 	bill is being submitted to you. Not a single one." Cutliff objected based on the
17 parties' stipulation before trial that medical bills would not be introduced. The judge
18 	sustained the objection and instructed the jury to disregard this argument.
19 {7} 	The jury returned a verdict in favor of Cutliff for $10,000. This appeal
20 followed.
4

1 DISCUSSION
2 	A. 	The District Court Did Not Abuse Its Discretion in Determining That Dr.
3 	Peles' Expert Testimony Was Admissible
4 	1. 	Admissibility of Expert Testimony
5 	{8} 	This 	Court reviews 	the 	admission 	of expert testimony 	for 	an abuse 	of
6 discretion. See Baerwald v. Flores, 1997-NMCA-002, 16, 122 N.M. 679, 930 P.2d
7 816. An abuse of discretion occurs where "the trial judge' s action was obviously
8 erroneous, arbitrary, or unwarranted" or is "clearly against the logic and effect of the
9 facts and circumstances before the court." State v. Alberico, 1993-NMSC-047, 163,
10 	116 N.M. 156, 861 P.2d 192.
11 	{9} 	Rule 	11-702 	NMRA governs the 	admissibility 	of expert testimony 	and
12 	provides as follows:
13
14
15
16
17
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.
18 	See Acosta v. Shell W Expl. & Prod., Inc., 2016-NMSC-012, 1 22, 370 P.3d 761
19 (stating Rule 11-702 requirements).
20 	{tO} 	Cutliff contends that the district court abused its discretion in admitting Dr .
21 	Peles' testimony, arguing that the testimony (1) lacked a reliable basis and (2)
22 exceeded the scope of Peles' expertise as a biomechanical engineer. We address each
23 	argument in turn.
5

1 2. 	Dr. Peles' Opinion Had a Reliable Basis
2 	{II} 	Cutliff contends that Dr. Peles' testimony did not rest upon a reliable basis
3 because it lacked a sufficient factual foundation. To be admissible, expert testimony
4 must be based on facts sufficient to permit a reasonably accurate conclusion, as
5 opposed to mere conjecture. State v. Downey, 2008-NMSC-061, ~ 32, 145 N.M. 232,
6 	195 P.3d 1244. Experts may base their opinions upon factual assumptions only if
7 those assumptions have an evidentiary foundation in the record. Id.~ 34.
8 	{12} 	According to Cutliff, Dr. Peles' testimony lacked a reliable basis because Dr.
9 Peles failed to do the following: personally inspect the vehicles involved in the crash,
10 retrieve data from the event data recorder in Hancock's vehicle, conduct physical
11 	testing specific to the crash, or use precise measurements of the crash damage.
12 	Cutliff also contends that the data Dr. Peles relied on in reaching his conclusions
13 	was deficient because it consisted only of poor quality, black and white photos of
14 Cutliff s vehicle and a vehicle repair estimate. We disagree.
15 	{13} 	Dr. Peles reviewed both black and white and color photos of Cutliff s vehicle,
16 a photograph of Hancock's vehicle, deposition testimony, discovery responses,
17 police reports, Cutliff s medical records, Cutliff s notes, and data related to vehicle
18 	crashes, dimensions and weight, and stiffness in forming his opinions. Dr. Peles
19 presumed 	the 	accident 	occurred 	as 	Cutliff described, 	and the 	information he
20 reviewed enabled Dr. Peles to estimate the severity of impact to Cutliff s vehicle.
6

1 Conceding that the available information was limited, Dr. Peles did not use a precise
2 figure for impact severity but used "figures [that were] the most conservative or the
3 ones that [were] most in [Cutliffs] favor." Dr. Peles also determined the motion of
4 	Cutliffs body by assuming the worst possible vehicle damage to ensure that he
5 estimated impact at the most severe level. Dr. Peles thus addressed the limitations of
6 the 	data by 	assuming the 	worst damage 	and most severe 	impact possible 	in
7 estimating vehicle damage and the severity of the impact. Accordingly, we cannot
8 conclude that the district court abused its discretion in determining that Cutliff s
9 complaints about the adequacy of the data Dr. Peles relied on went to the weight of
10 the evidence and could be addressed in cross-examination. See Acosta, 2016-NMSC-
11 	012, 1 28 ("Vigorous cross-examination, presentation of contrary evidence, and
12 careful instruction on the burden of proof are the traditional and appropriate means
13 	of attacking shaky but admissible evidence." (internal quotation marks and citation
14 omitted)). In sum, we cannot say that Cutliff s unreliability argument supports the
15 	conclusion that the district court abused its discretion in denying Cutliff s motion to
16 exclude Dr. Peles' testimony.
17 3.
18
19 	{14}
Dr. Peles' Testimony Did Not Exceed the Scope of His Expertise as
Biomechanical Engineering Expert
Cutliff claims that Dr. Peles gave opinion testimony on medical causation and
20 therefore testified outside the scope of his expertise as a biomechanical engineer.
21 	Nonmedical experts cannot offer an opinion as to medical causation. See Baerwald,
7

1 1997-NMCA-002, ,I 12; Woods v. Brumlop, 1962-NMSC-133, ,I 15, 71 N.M. 221,
2 377 P.2d 520 (noting that the cause of a medical condition "lies in a field of
3 knowledge in which only a medical expert can give a competent opinion").
4 	{15} 	This Court held in Baerwald that the district court did not abuse its discretion
5 in determining that an expert witness with a graduate degree in engineering and
6 practice in the field was qualified to testify as an expert in biomechanics in a case
7 involving a motor vehicle collision, and "possessed knowledge and experience that
8 would assist the jury in understanding the biomechanical aspects of [the] case."
9 	1997-NMCA-002, 	,r 	10 	(citing 	Rule 	11-702). 	We 	characterized 	as 	"proper
10 testimony" the expert' s testimony "on the amount of force exerted on the human
11 	body by the accident expressed in terms of G-forces" based on "his study of
12 	biomechanics and engineering" and his extrapolation of information "based on
13 	pictures of the vehicles and the amount of damage done by the accident." Id. ,I 11.
14 And we concluded that the expert' s trial testimony, which included an opinion as to
15 	whether the collision at issue was capable of producing an injury of the type claimed
16 by the plaintiff was limited to "his area of expertise, that is, the effects of forces on
17 the human body[.]" Id. ,I,I 15, 18. In concluding that the district court did not abuse
18 	its discretion in determining that the witness "was qualified to testify as an expert in
19 biomechanics," we cited cases from our Supreme Court noting the district court's
20 "wide discretion to determine whether [a] witness is qualified to testify as an expert"
8

1 and that "no set criteria can be laid down to test [the] qualifications of [an] expert."
21d.1l0.
3 	{16} 	Like the expert in Baerwald, Dr. Peles limited his opinions to his expertise in
4 biomechanical engineering. Id. 	11 16 , 17. He readily conceded that he was not
5 qualified to offer an opinion on medical causation. Instead, he opined, based on the
6 assumption that the accident resulted in the most severe level of impact, that it is
7 unlikely that Cutliff would have sustained a concussion or low back injury. When
8 asked on cross-examination about his statement that there is "no mechanism ... for
9 a head injury or a low back injury," Dr. Peles responded, "We talked in my
10 deposition about degeneration in the low back. That's a likely candidate for that."
11 	Cutliff's counsel followed up asking Dr. Peles whether he was "offering the jury an
12 	opinion that Mr. Cutliff has degenerative back disease?" to which Peles answered,
13 	"Well, it's clear from his medical records. I'm not diagnosing him, but he clearly
14 does." To the extent any testimony given by Dr. Peles could have crossed the
15 	threshold into impermissible medical testimony, it would have been during cross-
16 examination and, therefore, error invited by Cutliff. See State ex rel. State Eng 'r v.
17 	United States, 2018-NMCA-053, 136,425 P.3d 723 ("It is well established that a
18 	party may not invite error and then proceed to complain about it on appeal." (internal
19 	quotation marks and citation omitted)), cert. granted, 2 018-NMCERT-_ (Nos.
20 	S-1-SC-37068, S-1-SC-37100, Aug. 	13, 20 18); see also State v. 	Anaya, 2012-
9

1 NMCA-094, ,-r 36, 287 P.3d 956 (stating that "[a] party cannot preserve an argument
2 for error regarding the admission of evidence that the party introduced").
3 {17} 	Cutliff also argues that Vis-Com's attorney elicited impermissible testimony
4 when Dr. Peles answered "no" when asked on redirect, "Would you have any reason
5 to dispute Dr. Allen's testimony that this accident caused no more than a neck
6 strain?" Given Dr. Peles' prior testimony and repeated acknowledgement that he was
7 not giving a medical diagnosis, we do not see how this answer shows that Dr. Peles'
8 testimony exceeded the bounds of his expertise in biomechanical engineering. We
9 cannot say that Cutliff s arguments establish that the district court abused its
10 discretion in allowing Dr. Peles' testimony.
11 	B. 	Exclusion of Medical Records
12 	{18} 	Cutliff argues that the district court abused its discretion by refusing to admit
13 	his medical records through a non-treating physician. Cutliff contends the medical
14 	records were authenticated pursuant to Rule 11-901 NMRA and were admissible
15 	under the business records and residual exceptions to the hearsay rule. 2 See Rule 11-
16 	803(6) NMRA; Rule 11-807 NMRA. Alternatively, he claims the records were
2 Cutliff argues that the medical records would be admissible under Rule 11-
803(4), but does not identify where in the record this argument was preserved. See
Woolwine v. Furr's, Inc., 1987-NMCA-133, ,-r 20, 106 N.M. 492, 745 P.2d 717 ("To
preserve an issue for review on appeal, it must appear that appellant fairly invoked
a ruling of the trial court on the same grounds argued in the appellate court."). We
decline to address this unpreserved argument.
10

1 admissible because Vis-Com used them to question other witnesses. The district
2 court rejected these arguments, concluding that the records could potentially be
3 admissible under the business records exception to the hearsay rule but that Cutliff
4 failed to lay a proper foundation. We review the district court's decision to admit or
5 exclude evidence for an abuse of discretion. See State v. Jackson, 20 l 8-NMCA-066,
6 ,I 13, 429 P.3d 674.
7 	{19} 	To authenticate the medical records, Cutliff was required to show "that the
8 item is what [he] claims it is." Rule l l-90l(A). This requirement is satisfied by "the
9 testimony of a witness who knows that the documents in fact came from the legal
10 custodian of the document[s]." Spear v. McDermott, 1996-NMCA-048, ,I 13, 121
11 	N.M. 609, 916 P.2d 228. Cutliff does not identify where in the record he introduced
12 	such testimony, an affidavit, or point to other evidence authenticating the medical
13 	records.
14 	{20} 	Even if Cutliff had met this requirement, he would still need to demonstrate
15 	the applicability of a hearsay exception. See Rule 11-802 NMRA (providing that
16 hearsay is inadmissible unless an enumerated exception applies). Cutliff did not
17 	satisfy the requirements of the business records exception stated in Rule 11-803(6),
18 	as he presented no evidence from a records custodian or other witness establishing
19 where the records came from, when they were created, or whether the medical
20 records were kept as a regularly conducted activity of the medical facility. See Rule
1 1

1 11-803(6); see also Padilla v. Hay, 1995-NMCA-067, ,I 13, 120 N .M. 220,900 P.2d
2 969 (stating that if a party seeks to offer a record under the business record exception,
3 "the proponent must introduce them through a records custodian or other qualified
4 person competent to testify as to their authenticity" (internal quotation marks and
5 citation omitted)).
6 	{21} 	Cutliff also 	claims that the 	medical 	records 	were 	trustworthy 	and thus
7 admissible 	based 	on 	the 	use 	of the 	medical 	records 	by 	Vis-Com 	during 	its
8 questioning of Cutliff and two experts. This argument fails. Although the rules of
9 evidence permit experts to rely on hearsay to testify, the hearsay itself is not
10 	admissible. See Rule 11-703 NMRA; City of Santa Fe v. Komis, 1992-NMSC-051,
11 	,I 25 n.4, 114 N.M. 659, 845 P.2d 753 ("While experts may rely on hearsay under
12 Rule [l 1-]703, the hearsay itself is not admissible.").
13 	{22} 	To the extent Cutliff relies on Rule 11-807, the residual exception to the
14 hearsay rule, he does not explain why the medical records should have been admitted
15 	under this rule, and we decline to consider it. See Corona v. Corona, 2014-NMCA-
16 071, ,I 28, 329 P.3d 701 (stating that we will not "review an argument that is not
17 adequately developed" ); Muse v. Muse, 2009-NMCA-003 , ,I 72, 145 N.M. 451,200
18 	P .3 d 104 ("We will not search the record for facts, arguments, and rulings in order
19 to support generalized arguments."). We conclude that the district court did not
20 	abuse its discretion in excluding the medical records.
12

1 C. 	Motions for Mistrial
2 	{23} 	Cutliff contends that the district court abused its discretion in denying his two
3 motions for a mistrial, one made during the testimony of Dr. Peles and another made
4 during closing argument. This Court reviews a denial of a motion to declare a
5 mistrial for an abuse of discretion. See Jolley v. Energen Res. Corp., 2008-NMCA-
6 	164, ,I 24, 145 N.M. 350, 198 P.3d 376.
7 	1. 	Motion for Mistrial During Dr. Peles' Testimony
8 	{24} 	Vis-Com stipulated to liability prior to trial, leaving the jury to decide only
9 the issues of causation of injuries and damages. During trial, Vis-Com elicited
10 testimony from Dr. Peles that the damage to Cutliff s vehicle was consistent with
11 	Cutliff having struck the vehicle in front of him before he was rear-ended by
12 	Hancock's vehicle. The district court denied Cutliff s motion for a mistrial but
13 	sustained his objection and instructed the jury to disregard this testimony.
14 	{25} 	Cutliff contends that Vis-Com intentionally elicited this testimony at trial, in
15 	violation of the stipulation to liability, to cast blame on Cutliff for causing the crash.
16 Cutliff argues that this testimony was impermissible because it had the potential to
17 interject comparative fault into the minds of the jurors, which could have had an
18 	impact on the final damage award. We are unpersuaded. The district court instructed
19 the jury to disregard this testimony, and this Court presumes that the jury understood
20 and complied with the instruction. See Vigil v. Miners Colfax Med. 	Ctr., 1994-
13

1 NMCA-054, ,r 22, 117 N.M. 665, 875 P.2d 1096 ("There is a presumption that the
2 jury understood and complied with the court's instructions."). "It has long been the
3 rule in this jurisdiction that unless it is clear that prejudice resulted because of
4 evidence erroneously admitted, striking or instructing the jury to disregard it will
5 cure the error and avoid reversal." Apodaca v. Miller, 1968-NMSC-086, ,r 21, 79
6 N.M. 160, 441 P.2d 200; see also id. ("Although we fully appreciate the argument
7 that testimony once given cannot be erased from the minds of the jury, in our view
8 it would make jury trials doubly hazardous if certain testimony, once admitted, could
9 not be withdrawn by an instruction to this effect."). We therefore hold that the district
10 court did not abuse its discretion in denying Cutliff' s initial motion for a mistrial.
11 	2. 	Closing Argument
12 	{26} 	Cutliff next argues that the district court abused its discretion by denying his
13 	subsequent motion for a mistrial, made in response to opposing counsel's argument
14 to the jury that Cutliff failed to admit any medical bills into evidence. Cutliff
15 	objected because the parties had stipulated that they would not admit the medical
16 	bills 	into 	evidence. 	The 	district 	court 	instructed 	the 	jury 	to 	disregard 	the
17 	impermissible argument. Again, we are unpersuaded.
18 	{27} 	The district court timely provided a curative jury instruction. Moreover, the
19 district court specifically instructed the jury about the type of damages it could award
20 to Cutliff, an instruction which, at Cutliff's request, did not include damages for
14

1 medical expenses. Cutliff failed to show that counsel's comment "was reasonably
2 calculated to cause and probably did cause the rendition of an improper judgment in
3 the case." Benavidez v. City of Gallup, 2007-NMSC-026, ~ 16, 141 N.M. 808, 161
4 P.3d 853 (internal quotation marks and citation omitted). "We cannot indulge in
5 conjecture or speculation concerning the basis for the jury's award, and must assume
6 that the jury followed" the jury instructions and that the district court's curative
7 instruction remedied any prejudice. State ex rel. State Highway Comm 'n v. Martinez,
8 	1970-NMSC-062, ~ 16, 81 N.M. 442, 468 P.2d 413. The district court did not abuse
9 its discretion in denying Cutliff s second motion for a mistrial.
10 	CONCLUSION
11 	{28} 	For the foregoing reasons, we affirm.
12 	{29} 	IT IS SO ORDERED.
13
14
15 	WE CONCUR:
16 ~~~~~~~~~~~:::::J....-~
17 	LI
15