May 12, 2025- Gary A. Saunders v. Union Pacific Railroad Company, No. A-1-CA-41379

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

i Court of Appeals of New Mexico
Opinion Number: Filed 5/12/2025 7:09 AM

c .
Filing Date: May 12, 2025 ex Dyis,

Stephanie Latimer Davis

No. A-1-CA-41379 Acting Chief Clerk

GARY A. SAUNDERS,
Plaintiff-Appellee,

V.

UNION PACIFIC RAILROAD COMPANY,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nancy J. Franchini, District Court Judge

Mendez Isaac Joudi, PLLC
Joseph G. Isaac

Tiffany N. Joudi

El Paso, TX

L. Helen Bennett, PC
L. Helen Bennett
Albuquerque, NM

for Appellee

Hall & Evans, LLC
Cari Neill

Gina M. Rossi
Denver, CO

Haynes and Boone, LLP
Kent Rutter

Ryan Pitts

Houston, TX

for Appellant

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Union Pacific Railroad Company (Union Pacific) appeals a jury	3
verdict awarding damages to Plaintiff Gary A. Saunders, a Union Pacific employee	4
who was assaulted by coworker Eric Magoon while both were working at a jobsite	5
near Deming, New Mexico. The Federal Employers’ Liability Act (FELA), 45	6
U.S.C. §§ 51-60, provides the exclusive remedy for the death or injury of a railroad	7
employee caused by the negligence of the employer railroad. A railroad is liable	8
under the FELA for injuries to its employee from the intentional tort of a coworker	9
if the railroad was negligent under either a respondeat superior or a direct negligence	10
theory. The jury found Union Pacific negligent, and awarded Plaintiff substantial	11
damages for the injuries caused by Magoon’s assault. Union Pacific asks this Court	12
to set aside the verdict, and order a new trial, contending that (1) there was	13
insufficient evidence that Union Pacific was negligent; (2) the jury instructions	14
incorrectly stated the governing law; (3) the jury instruction on Plaintiff’s theory of	15
liability included negligent supervision and negligent training claims that were not	16
supported by substantial evidence; (4) the jury instruction on damages, by including	17
an instruction on aggravation of a preexisting condition, allowed for double recovery	18
of noneconomic damages; and (5) the damages awarded by the jury were excessive.	19
Alternatively, Union Pacific argues that (1) the FELA, 45 U.S.C. § 55, and the	20

2
collective bargaining agreement, require that the amounts paid by Union Pacific for	1
Plaintiff’s medical bills be offset from the judgment; and (2) the amounts subject to	2
the liens of the Railroad Retirement Board (RRB) and of an insurer should also be	3
offset from the judgment. We remand solely to allow the district court to determine	4
and offset the amount required by the terms of the collective bargaining agreement,	5
and otherwise affirm.	6
BACKGROUND	7
{2} 	Plaintiff was an assistant foreman employed by Union Pacific. In April 2012,	8
Plaintiff’s work group (gang) were performing maintenance work on railroad tracks	9
near Deming. Plaintiff’s gang used an MS-60 car, a type of specialized vehicle for	10
transporting waste rock and debris generated by track maintenance. Every morning	11
before work began for the day, foremen and supervisors met in an empty bus parked	12
at the worksite to coordinate the day’s work.	13
{3} 	On April 13, 2012, Plaintiff was present at a morning meeting with a dozen	14
Union Pacific employees, including Magoon, who was the supervisor of the	15
mechanic team. Plaintiff told Magoon that he needed repairs on his gang’s MS-60	16
car—a request that Plaintiff had been making for two months, and which had not	17
been fulfilled by Magoon. As Plaintiff began to explain that the condition of the	18
MS-60 car was a safety issue, Magoon struck Plaintiff multiple times with his fist	19
on Plaintiff’s hard hat. Although Plaintiff suffered no immediate pain, he developed	20

3
neck pain and ten days later sought medical attention. Plaintiff was admitted to a	1
hospital for treatment; his injuries ultimately required surgery. Plaintiff reported the	2
incident and his injuries to Union Pacific. Medical testimony at trial corroborated	3
Plaintiff’s report that his injuries were due to Magoon’s assault. We incorporate	4
further factual discussion into our analysis of the sufficiency of the evidence.	5
DISCUSSION	6
I. 	Federal Law Governs a Railroad’s Liability Under the FELA for Injuries	7
to an Employee Caused by the Intentional Tort of a Coworker	8
{4} 	Plaintiff brought his cause of action under the FELA. Federal law provides	9
that “damages for the death or injury of a railroad employee engaged in interstate	10
commerce, allegedly caused by the negligence of the railroad, are recoverable	11
exclusively from the railroad under the FELA, and may not be recovered under state	12
law.” Janelle v. Seaboard Coast Line R.R., 524 F.2d 1259, 1261 (5th Cir. 1975).	13
What constitutes negligence under the FELA is a federal question, and federal court	14
precedent construing and applying the FELA governs. See Urie v. Thompson, 337	15
U.S. 163, 174 (1949).	16
{5} 	When a railroad worker claims injury caused by the intentional tort of a	17
coworker under the FELA, as Plaintiff does in this case, the railroad employer is	18
liable only if the employer was negligent under either “a respondeat superior or a	19
direct negligence theory.” See Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1362 (9th	20

4
Cir. 1995) (emphasis omitted). The jury in this case was instructed on both theories	1
of negligence.	2
{6} 	A railroad may be found liable for negligence under a respondeat superior	3
theory if the plaintiff was intentionally assaulted by an employee of the railroad who	4
was acting within the scope of their employment at the time of the assault, and if that	5
employee’s conduct was, to any extent, “in furtherance of the [railroad]’s business.”	6
Id. 	(internal 	quotation 	marks 	and 	citation 	omitted). 	Alternatively, 	a 	railroad	7
employer may be found “directly negligent” under the FELA for its employee’s	8
intentional assault if it knew or should have known of the employee’s propensity to	9
commit such assaults and should reasonably have made reasonable provision against	10
such misconduct. See Harrison v. Mo. Pac. R.R., 372 U.S. 248, 249 (1963). The	11
railroad employer need not be able to foresee the “exact manner” of the injury, but	12
only that “that an injury might occur.” Mullahon, 64 F.3d at 1364 (internal quotation	13
marks and citations omitted). As the United States Supreme Court has stated, “[T]he	14
fact that the foreseeable danger [to the railroad’s employee] was from intentional or	15
criminal misconduct is irrelevant; [the railroad] nonetheless had a duty to make	16
reasonable provision against it.” Harrison, 372 U.S. at 249 (internal quotation marks	17
and citation omitted). Failure to make “reasonable provision” against intentional	18
misconduct is negligence on the part of the railroad. Id.	19

5
{7} 	Important to the understanding of the employer’s liability for negligence	1
under both of these theories of negligence is the principle that a “[railroad] employer	2
is liable for the negligence of its employees, regardless of rank, and regardless of	3
whether the immediate cause of the harm was intentional.” Mullahon, 64 F.3d at	4
1362 (citing 45 U.S.C. § 54). Plaintiff relied on this principle to include claims that	5
the 	negligence 	of 	railroad 	employees 	in 	supervising, 	training, 	and 	reporting	6
accidents and injuries contributed to the Union Pacific’s failure to protect him from	7
Magoon’s foreseeable violent conduct.	8
{8} 	In Rogers v. Missouri Pacific Railroad Co., the United States Supreme Court	9
held that FELA cases require less proof than ordinary negligence actions. 352 U.S.	10
500, 506-07 (1957). The Supreme Court stated that under the FELA, “the test of a	11
jury case is simply whether the proofs justify with reason the conclusion that	12
employer negligence played any part, even the slightest, in producing the injury or	13
death for which damages are sought.” Id. at 506 (emphasis added). New Mexico has	14
adopted uniform jury instructions for negligence actions arising under the FELA.	15
See UJI 13-901 to -921 NMRA. Consistent with Rogers, the New Mexico instruction	16
on causation states that the jury should find that a plaintiff employee’s injury is	17
caused by the railroad employer’s negligence when the employer’s “act or failure to	18
act played any part, no matter how small, in bringing about the injury or damage.”	19
UJI 13-915 (emphasis added).	20

6
{9} 	This liberal power to engage in inferences from the evidence extends to the	1
jury’s finding of fault, as well as to its finding of causation. Federal courts have held	2
that “[u]nder the . . . FELA, the right of the jury to pass upon the question of fault	3
and causality must be most liberally viewed. The jury’s power to engage in	4
inferences must be recognized as being significantly broader than in common law	5
negligence actions.” Ybarra v. Burlington N., Inc., 689 F.2d 147, 149 (8th Cir. 1982)	6
(alterations, internal quotation marks, and citation omitted); see also Burns v. Penn	7
Cent. Co., 519 F.2d 512, 514 (2nd Cir. 1975) (“Supreme Court decisions make it	8
clear that, under . . . the FELA, the jury’s power to draw inferences is greater than	9
in common-law actions.”).	10
II. 	Plaintiff Presented Sufficient Evidence of Union Pacific’s Negligence	11
Under Both Respondeat Superior and Direct Negligence Theories of	12
Liability	13
{10} 	The standard of review on appeal from a jury verdict applied by this Court	14
and that applied by federal appellate courts in FELA cases is virtually identical. We,	15
therefore, need not decide which standard applies. In assessing the sufficiency of the	16
evidence to support a jury verdict, we review for substantial evidence. See Pub. Serv.	17
Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, ¶ 16, 131 N.M. 100, 33	18
P.3d 651. “[W]e examine the record for relevant evidence such that a reasonable	19
mind might accept as adequate to support a conclusion,” viewing the facts in the	20
light most favorable to the verdict. Nava v. City of Santa Fe, 2004-NMSC-039, ¶ 10,	21

7
136 N.M. 647, 103 P.3d 571 (internal quotation marks and citation omitted). Federal	1
appellate courts similarly “set aside a jury verdict [in a FELA case] only when there	2
is no evidence of substance upon which reasonable persons could differ.” Ybarra,	3
689 F.2d at 150. Like this Court, federal courts “view the evidence most favorably	4
to the plaintiffs and give them the benefit of all reasonable inferences to be drawn	5
from the record.” Id.	6
A. 	Respondeat Superior	7
{11} 	With this standard of review in mind, we turn to Union Pacific’s argument	8
that the evidence in the record is not sufficient to support the jury’s finding that	9
Union 	Pacific 	was 	vicariously 	liable 	under 	respondeat 	superior 	doctrine 	for	10
Magoon’s intentional assault on Plaintiff. Respondeat superior liability of an	11
employer railroad for an intentional assault committed by one of the railroad’s	12
employees requires that the employee who committed the assault be shown to have	13
committed the assault in furtherance of the railroad’s business, rather than for purely	14
personal reasons. See Mullahon, 64 F.3d at 1362. Union Pacific’s argument on	15
appeal focuses on what it alleges is the insufficiency of the evidence to establish that	16
Magoon was acting in furtherance of Union Pacific’s business.	17
{12} 	In assessing the sufficiency of the evidence, we measure the evidence against	18
the relevant jury instruction, which reads as follows:	19
Union Pacific is liable for intentional acts committed by one of its	20
employees if:	21

8
1. The act was committed in furtherance of Union Pacific’s business,	1
or	2
2. Union Pacific failed to take reasonable steps to prevent a reasonably	3
foreseeable danger of harm to . . . [P]laintiff.	4
An employee is acting in furtherance of Union Pacific’s business when	5
[they are] doing something [they were] employed to do or which was	6
reasonably incidental to [their] employment.	7
An act is not considered in furtherance of Union Pacific’s business just	8
because it was committed at the work site or while on[ ]duty.	9
An employer cannot be held liable for the wanton act of its employee if	10
the employee assaults another for the sole purpose of satisfying [their]	11
own temper. However, if a supervisor pursues [their] official duties	12
with an excess of zeal, the employer is liable for the torts resulting from	13
that excess.	14
An assault is reasonably foreseeable if Union Pacific knew or should	15
have known of its employee’s propensity, such that it should have	16
reasonably anticipated the intentional act.	17
{13} 	Union Pacific argues that Magoon’s assault on another employee was	18
“plainly” not one of Magoon’s job responsibilities, and was therefore plainly not in	19
furtherance of Union Pacific’s business. According to Union Pacific, it “forbids any	20
type of physical altercation between employees,” and this policy alone required the	21
jury to find that Magoon was not acting in furtherance of the railroad’s business. We	22
do not agree.	23
{14} 	The phrase “in furtherance of the employer’s business,” is not limited by the	24
jury instruction to conduct that is a formal job responsibility specifically assigned to	25

9
the employee. The jury was instructed that “[a]n employee is acting in furtherance	1
of [the railroad employer]’s business when [they are] doing something [they were]	2
employed to do 	or which was reasonably incidental to 	[their] 	employment.”	3
Therefore, conduct that is merely “reasonably incidental to [the employee’s]	4
employment” can be conduct “in furtherance of the employer’s business.” Moreover,	5
even intentional misconduct or criminal conduct prohibited by the employer’s	6
policies, or by the law, can still qualify as conduct “in furtherance of the employer’s	7
business.” See Harrison, 372 U.S. at 249 (“[T]he fact that the foreseeable danger	8
was from intentional or criminal misconduct is irrelevant; [the railroad employer]	9
nonetheless had a duty to make reasonable provision against it.” (internal quotation	10
marks and citation omitted)).	11
{15} 	Only where the employee’s conduct arises wholly from some external,	12
independent, personal motive on the part of the employee, so that the employee is	13
found to be acting solely for their own benefit, is the railroad free of respondeat	14
superior liability. See Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807, 819-20 (7th	15
Cir. 1985) (en banc) (“The usual view . . . is that when the motive for the employee’s	16
intentional tort is personal—which is to say unrelated to his employer’s objectives	17
and therefore not in furtherance of those objectives—the employer is not liable under	18
a theory of respondeat superior.”). So long as the motive for an employee’s	19
intentional tort is to further their employer’s goals or objectives, no matter how	20

10
misguided, the employer is liable under a theory of respondeat superior for the	1
negligence of its agent. Id. at 819.	2
{16} 	The question for this Court, then, is whether there was evidence from which	3
the jury could have reasonably inferred that Magoon did not strike Plaintiff “for the	4
sole purpose of satisfying his own temper,” Jury Instruction No. 9, but that Magoon	5
sought, to some degree, to further Union Pacific’s interests. The evidence at trial	6
showed that Magoon’s assault on Plaintiff occurred just as Plaintiff brought to	7
Magoon’s attention, in front of a dozen Union Pacific supervisors and foremen, that	8
Magoon’s failure to perform necessary repairs on the MS-60 car used by Plaintiff’s	9
gang created a safety hazard. The jury’s finding that Magoon was acting in	10
furtherance of Union Pacific’s business, and not solely out of temper, or for his own	11
interests, is supported by evidence in the record showing that Union Pacific routinely	12
and consistently discouraged employees from reporting accidents and injuries. It had	13
a point system in place, which the evidence showed punished not only the employee	14
who reported an on-the-job injury, but that employee’s whole gang, even if the injury	15
was not the injured employee’s fault. The injury would be put on the reporting	16
employee’s record and “points” would be deducted from the employee’s whole work	17
gang. Work gangs, which had no reported incidents or injuries, and thereby appeared	18
on Union Pacific’s records to have a perfect safety record, were rewarded. It was	19
reasonable for the jury to infer from this evidence, and from other evidence about	20

11
what Union Pacific communicated to its employees, that it did not want any safety	1
violations or injuries reported, that it wanted to make sure that the railroad appeared	2
on official records to have a clean safety record. In this context, the inference that	3
Magoon’s attack on Plaintiff was motivated, at least in part, by Magoon’s desire to	4
silence Plaintiff and to warn him to not accuse Magoon of a safety violation. See	5
Burns, 519 F.2d at 514 (illustrating the generous inferences the FELA allows a jury	6
to draw in favor of an employee). Finding the evidence sufficient to show that	7
Magoon was acting in furtherance of Union Pacific’s business on this basis, the	8
district court denied Union Pacific’s posttrial motion for a new trial. We agree that	9
substantial evidence in the record supports the jury’s finding of Union Pacific’s	10
liability under a respondeat superior theory of negligence.	11
B. 	Direct Negligence	12
{17} 	We turn next to Union Pacific’s argument that the evidence in the record is	13
not sufficient to support a finding either that the physical assault by Magoon was	14
foreseeable, or that Union Pacific could reasonably have prevented the assault, the	15
required elements to prove direct negligence by Union Pacific. The jury was	16
instructed, in relevant part, that it could find Union Pacific liable for Magoon’s	17
intentional assault under a direct negligence theory if it found that “Union Pacific	18
failed to take reasonable steps to prevent a reasonably foreseeable danger of harm to	19

12
. . . [P]laintiff.” The jury was given the following definition of “reasonably	1
foreseeable” in the context of an assault:	2
An assault is reasonably foreseeable if Union Pacific knew or should	3
have known of its employee’s propensity, such that it should have	4
reasonably anticipated the intentional act.	5
{18} 	Union Pacific’s argument on appeal focuses on what it claims is the	6
insufficiency of the evidence to show that Magoon’s assault was “reasonably	7
foreseeable.” Union Pacific contends that Magoon’s assault on Plaintiff could only	8
have been reasonably foreseeable if the evidence established that Magoon had	9
committed 	multiple 	prior 	acts 	of 	violence, 	which 	were 	reported 	to 	railroad	10
management, putting Union Pacific on notice that such an act might again be	11
committed by Magoon. Union Pacific points to the lack of evidence that it had been	12
informed of any prior assault, threats of violence, misbehavior, or criminal history	13
involving Magoon, claiming that without this sort of prior notice of similar acts by	14
Magoon, the jury’s finding of direct negligence must be reversed.	15
{19} 	We do not agree that an employer must have received multiple reports of	16
incidents of violence committed by an employee to support a jury finding that the	17
employer “knew or should have known of its employee’s propensity.” In this case,	18
Union Pacific acknowledges that there was testimony at trial about an argument	19
between Magoon and another employee prior to the incident with Plaintiff, where	20
Magoon attempted to grab the other employee’s arm “in a fit of anger.” The	21

13
employee who was the victim of that attempted assault by Magoon described	1
grabbing and pinning Magoon’s arms to stop Magoon from injuring him. Another	2
supervisor had to step in to pull Magoon away. Union Pacific also points to evidence	3
that neither the employee who was attacked by Magoon, nor the supervisor who	4
intervened, reported the incident to management, something Union Pacific argues	5
precludes reliance on this incident to support the foreseeability of the subsequent	6
assault by Magoon on Plaintiff. We note, however, that even if the jury believed that	7
Union Pacific management was unaware of this incident, the jury instructions allow	8
the jury to find liability if Union Pacific “should have known” of an employee’s	9
propensity for violence, “such that it should have reasonably anticipated the	10
intentional act.” Although Union Pacific’s written policies required reporting of any	11
such incident, 	neither the employee who was assaulted by Magoon, nor the	12
supervisor who intervened followed that policy and reported that incident. This	13
failure to report was consistent with the evidence in the record showing that Union	14
Pacific did not customarily enforce this policy, and in fact discouraged the reporting	15
of injuries or incidents. Thus, this evidence, at a minimum, permits an inference that	16
Union Pacific “should have known” of at least one prior assault by Magoon. We	17
note that the jury could also have relied on this incident to find that the employee	18
and supervisor involved in the incident were negligent in failing to report the	19
incident, and that this negligence and the lack of consequences for the first incident	20

14
allowed Magoon to subsequently assault Plaintiff. This would be a valid basis for a	1
finding of respondeat superior liability by Union Pacific. See Mullahon, 64 F.3d at	2
1362 (“[U]nder FELA, an employer is liable for the negligence of its employees,	3
regardless of rank, and regardless of whether the immediate cause of the harm was	4
intentional.”).	5
{20} 	In addition to this incident involving physical assault by Magoon, there was	6
extensive testimony from railroad employees about Magoon’s short temper and	7
aggressive treatment of employees. Supervisors and employees alike reported	8
witnessing Magoon lose his temper, yell at employees, and be unnecessarily verbally	9
aggressive. Employee witnesses reported that Magoon’s outbursts were sufficiently	10
frequent that Union Pacific’s employees had adopted the phrase “you’ve been	11
Magooned” to refer to the situation where someone was on the receiving end of an	12
outburst by Magoon. Union Pacific argues that the only reasonable inference from	13
this evidence is that Magoon was perhaps gruff and a tough supervisor, but that he	14
was not physically aggressive.	15
{21} 	Although Union Pacific argues for what is perhaps one inference from this	16
evidence, it is not the only reasonable inference and, importantly, it is not the one	17
the jury drew. It was entirely reasonable for the jury to find that Magoon’s	18
notoriously angry and aggressive behavior and the regularity with which it occurred,	19
together with the physical assault described above, should have put Union Pacific	20

15
on notice of “[Magoon’s] propensity, such that it should have reasonably anticipated	1
the intentional act” that injured Plaintiff, or an act like that assault. Union Pacific’s	2
defense that it could not have foreseen the assault on Plaintiff because the prior	3
incident was not reported rings hollow where Union Pacific was shown to have	4
purposely suppressed reporting of incidents. Therefore, we conclude that the	5
evidence is sufficient to support the jury’s finding of direct negligence by Union	6
Pacific: an assault by Magoon was or should have been reasonably foreseeable.	7
III. 	The Jury Instructions Adequately Informed the Jury of the Elements	8
Required to Find the Railroad Liable Under the FELA	9
{22} 	Union Pacific argues next that the jury instructions misstated the applicable	10
federal law, confusing the jury, and that, therefore, remand for a new trial is required.	11
{23} 	In reviewing a preserved assertion of error in jury instructions, this Court	12
“seeks to determine whether a reasonable juror would have been confused or	13
misdirected by the challenged jury instruction.” State v. Martinez, 2021-NMSC-012,	14
¶ 25, 483 P.3d 590 (internal quotation marks and citation omitted). Juror confusion	15
can arise from instructions, which either through omission or misstatement, fail to	16
accurately describe the relevant law. Id. In determining whether jurors would have	17
been confused, we view the jury instructions in their entirety; it is sufficient if the	18
instructions as a whole provide an accurate statement of both the issues and the	19
applicable legal framework. See Enriquez v. Cochran, 1998-NMCA-157, ¶ 69, 126	20
N.M. 196, 967 P.2d 1136. According to Union Pacific, under the instructions given,	21

16
the jury could have improperly found the railroad liable, (1) even if it found that the	1
assault by Magoon had not occurred; or (2) that the federal standards requiring either	2
vicarious liability under the respondeat superior doctrine, or direct negligence, were	3
not met. Union Pacific’s challenge is directed to the instruction describing the	4
Plaintiff’s claims and Defendant’s defenses, and to the verdict form. We do not agree	5
that this jury instruction or the verdict form misstated the law or created such	6
confusion that the jury might have based its verdict on either of Union Pacific’s two	7
hypothetical erroneous understandings of the law.	8
{24} 	Plaintiff identified, and the challenged instruction listed, seven ways the	9
Plaintiff claimed Union Pacific’s employees were negligent, and then alleged that	10
each of those acts of commission or omission had “caused or contributed to the	11
injury and resulting damages” to Plaintiff. The list included Magoon’s assault on	12
Plaintiff; Union Pacific’s failure to properly supervise and to train its employees; the	13
failure of railroad employees to stop Magoon’s assault; Union Pacific’s failure to	14
discipline Magoon for his prior misconduct and to generally enforce its policies; and	15
the failure of railroad employees to report Magoon’s prior misconduct. Union Pacific	16
asked the district court to omit what it described as irrelevant items listed in the	17
proposed instruction on Plaintiff’s theory of the case, and instead to instruct the jury	18
solely on “Eric Magoon violently striking Plaintiff on the top of his hard hat several	19
times on April 13, 2012,” followed by the instruction on the legal theories of	20

17
respondeat liability and direct negligence as applied to intentional assaults, which	1
the district court gave in substantially the form requested by Union Pacific, and	2
which Union Pacific does not challenge on appeal.	3
{25} 	Union Pacific’s argument does not address the fact that the jury instruction it	4
sought to replace with its own theory of the case is the instruction that describes each	5
parties’ theory of the case. The form of the instruction used by the district court in	6
this case and its wording, apart from each party’s description of its own claims, is	7
taken directly from UJI 13-902, the New Mexico Uniform Jury Instructions entitled,	8
“Special [FELA] statement of the case issues; claims; formula,” an instruction	9
intended by our Supreme Court to be used to state each party’s theory of their case.	10
A defendant is not entitled to replace the jury instruction on a plaintiff’s theory of	11
the case, writing it in the way it would prefer the case to be presented to the jury.	12
“[A] party is entitled to an instruction on [their] theory of the case if there is evidence	13
to support it.” Enriquez, 1998-NMCA-157, ¶ 71. It was Plaintiff’s choice to argue	14
Union Pacific’s negligence by listing separately each act or omission by the railroad	15
that contributed to a foreseeable and preventable assault by Magoon.	16
{26} 	We also do not agree that this presentation of Plaintiff’s case, in conformity	17
with our uniform jury instructions, confused the jury about the need to find that	18
Plaintiff had sustained personal injuries from an assault by Magoon on April 13,	19
2012. The uniform jury instruction given begins with this statement: “Plaintiff	20

18
claims that he sustained damages from personal injuries,” before listing the acts of	1
negligence Plaintiff claims contributed to the assault or failed to prevent the assault.	2
The instruction then provides Union Pacific’s defense to Plaintiff’s claims. Union	3
Pacific’s defense denies that any of the claims of negligent conduct, including	4
Magoon’s assault, occurred, stating:	5
[Union Pacific] denies [P]laintiff’s claims and in addition asserts, as a	6
further defense, that [P]laintiff’s injuries and damages, if any, were the	7
result of his preexisting medical conditions, and his failure to mitigate	8
damages.	9
Union Pacific does not challenge the instruction focusing the jury on Plaintiff’s	10
injury and whether it was caused by the railroad’s negligence. That instruction reads	11
as follows:	12
When an employee of a railroad is injured while engaged in [their]	13
employment in interstate commerce and the injury is caused in whole	14
or in part by the negligence of the railroad, the railroad is liable in	15
damages.	16
(Emphasis added.) Thus, read as a whole, the instructions require the jury to find	17
that Plaintiff was injured and that at least one of seven acts of negligence caused that	18
injury.	19
{27} 	Union Pacific also challenges on appeal the adequacy of Jury Instruction	20
No. 9 because it did not inform the jury that the railroad is “only” liable for Plaintiff’s	21
injury from Magoon’s intentional assault either under the respondeat superior or	22
direct negligence doctrines. Union Pacific’s argument relies entirely on the district	23

19
court’s omission of the word “only” from its proposed instruction, arguing that	1
neither this instruction nor the verdict form required the jury to find that one of these	2
two legal requirements was met, in addition to the negligence finding. We conclude	3
that Union Pacific did not invoke a ruling from the district court on this issue.	4
Although it submitted an instruction which included the word “only,” it never	5
explained the significance of the word to the district court or sought a ruling. This	6
issue, therefore, was not preserved.	7
{28} 	“An instruction is correct, and thus proper to submit to a jury, when the	8
instruction is consistent with the law . . . and articulates fairly, completely, and	9
succinctly the relevant law applicable to the facts.” Mireles v. Broderick, 1994-	10
NMSC-041, ¶ 15, 117 N.M. 445, 872 P.2d 863 (citation omitted). “We will affirm	11
if, as a whole, the instructions fairly represent the law applicable to the issue in	12
question.” Lopez v. Devon Energy Prod. Co., 2020-NMCA-033, ¶ 9, 468 P.3d 887	13
(text only) (citation omitted). These standards have been met. Union Pacific has not	14
persuaded us that the instructions taken as a whole confused the jury or misstated	15
the law. We therefore reject Union Pacific’s claim of error in the jury instructions	16
given in this case.	17
IV. 	Plaintiff’s 	Claims 	of 	Negligence 	Submitted 	to 	the 	Jury 	Are 	Each	18
Supported by Substantial Evidence in the Record	19
{29} 	Union Pacific next argues that two of Plaintiff’s claims of negligence	20
submitted to the jury were not supported by substantial evidence, requiring reversal	21

20
and remand for a new trial. Where there is a general verdict, as there was in this case,	1
if any one of the Plaintiff’s theories of negligence is not supported by substantial	2
evidence, reversal and remand for retrial is required. See Counts v. Burlington N.	3
R.R., 952 F.2d 1136, 1140 (9th Cir. 1991); see also Romero v. Mervyn’s, 1989-	4
NMSC-081, ¶ 21, 109 N.M. 249, 784 P.2d 992 (holding that, when a party’s jury	5
instruction on its theory of the case relies on “alternative bases for relief, it is	6
reversible error to submit any one alternative for which there is no substantial	7
evidence”).	8
{30} 	Union Pacific argues that Plaintiff’s claims that (1) “[Union Pacific] failed to	9
properly supervise its employees”; and (2) [Union Pacific] failed to properly train	10
its employees,” are not supported by substantial evidence in the record. Union	11
Pacific claims that there was no evidence supporting a need to train its employees	12
on its policies regarding workplace bullying, aggression, or violence, or on the	13
railroad’s alleged requirement that any such incidents and any injuries be reported	14
because it had clear written policies prohibiting workplace violence and requiring	15
reporting. We are mindful that the burden of proof for a FELA claim allows the jury	16
to liberally draw inferences from the evidence and that our standard of review on	17
appeal requires this Court to draw all inferences in favor of the verdict. See Ybarra,	18
689 F.2d at 149; Haaland v. Baltzley, 1990-NMSC-086, ¶ 18, 110 N.M. 585, 798	19
P.2d 186.	20

21
{31} 	In this case there was extensive evidence of aggressive behavior by Magoon	1
over a long period of time, affecting many Union Pacific employees. This conduct,	2
as described by the witnesses, violated Union Pacific’s written policies, and yet the	3
railroad claimed to be unaware of it, and took no action to supervise Magoon or to	4
discipline him before he assaulted Plaintiff. There is a reasonable inference from this	5
evidence that Union Pacific was negligent in its supervision either of its foremen and	6
supervisors generally, or specifically in failing to adequately supervise Magoon, and,	7
similarly, that it was not training its employees and supervisors to follow its written	8
policies on how to respond to aggression and physical assaults on the job. The	9
evidence that not one of the approximately twelve employees on the bus who saw	10
Magoon’s attack on Plaintiff intervened to stop the assault, or reported it to higher	11
management, supported the inference that Union Pacific did not supervise its	12
employees adequately, enforce compliance with its written policies concerning	13
violence on the job, or train its employees to comply with its written policies on	14
violence and the reporting of incidents on the job. This is sufficient evidence of	15
negligence in supervising and training of its employees to justify a jury instruction	16
on negligent training and supervision—negligence directly attributable to a railroad	17
employer under the FELA. Substantial evidence also supports an inference that this	18
negligence contributed to the railroad’s failure to effectively prevent Magoon’s	19
foreseeable assault on Plaintiff. Because the claims challenged are supported by	20

22
substantial evidence in the record, the jury’s general verdict will not be disturbed on	1
appeal.	2
V. 	Union Pacific Failed to Preserve Its Argument Regarding the Adequacy	3
of the Jury Instruction on Damages	4
{32} 	Union Pacific contends that the district court failed to instruct the jury on the	5
proper standard for damages. It claims two points of error: that the inclusion in the	6
damages instruction of the language found in UJI 13-1808 NMRA, which addresses	7
the measure of damages for “aggravation of any preexisting ailment or condition,”	8
allowed the jury to provide a duplicative recovery for (1) Plaintiff’s “injury” to his	9
neck, and (2) again for the “aggravation” of his preexisting neck condition. Union	10
Pacific also argues on appeal that the damages instruction’s introductory paragraph,	11
stating that the jury “must fix the amount of money which will reasonably and fairly	12
compensate” Plaintiff for the “nature, extent and duration of the injury,” is an	13
incorrect statement of the law.	14
{33} 	We decline to address these two challenges because Union Pacific failed to	15
preserve them in the district court. Rule 1-051(I) NMRA requires that to preserve an	16
error in jury instructions for appeal, “objection must be made to any instruction	17
given, whether in UJI Civil or not; or, in case of a failure to instruct on any point of	18
law, a correct instruction must be tendered, before retirement of the jury.” Moreover,	19
an objection cannot be made in general terms. To preserve a challenge to a jury	20
instruction, “[t]he specific vice in a challenged instruction must be pointed out to the	21

23
[district] court.” Martinez v. Teague, 1981-NMCA-043, ¶ 8, 96 N.M. 446, 631 P.2d	1
1314.	2
{34} 	In this case, the parties each prepared proposed jury instructions. Union	3
Pacific filed two requested instructions that related to the measure of damages: one	4
on damages generally and another instruction addressing the measure of damages if	5
the jury were to find that Plaintiff’s injury aggravated a preexisting condition. Both	6
parties’ proposed instructions were discussed off the record with the district court	7
for several hours at the end of the final day of testimony, and a single set of jury	8
instructions for the court to read to the jury the next morning was adopted in that	9
conference. The district court then allowed the parties to place any objections to the	10
final jury instructions on the record. Counsel for Union Pacific stated its objections	11
to a number of jury instructions, but made no objection to the damages instruction	12
adopted by the district court. Union Pacific did not alert the district court to either of	13
the errors it now claims on appeal. Nor did it renew its request for its two proposed	14
damages instructions.	15
{35} 	Because the district court was not sufficiently advised of alleged errors in the	16
damages instruction, we do not consider the allegations of error Union Pacific now	17
makes on appeal. See Hinger v. Parker & Parsley Petroleum Co., 1995-NMCA-069,	18
¶ 32, 120 N.M. 430, 902 P.2d 1033 (“No New Mexico civil case has permitted a	19
litigant to fashion legal objections to jury instructions for the first time on appeal.”);	20

24
see also Ulibarri v. Jesionowski, 2023-NMCA-008, ¶ 61, 523 P.3d 624 (declining	1
to consider jury instruction error asserted on appeal where the record lacks evidence	2
of the objections made to the final instruction and the reasons the district court settled	3
on the instructions submitted to the jury).	4
VI. 	The Jury’s Verdict Was Not Excessive as a Matter of Law	5
{36} 	Union 	Pacific 	claims 	the 	jury’s 	award 	of 	noneconomic 	damages 	was	6
excessive. In its posttrial motion, the railroad sought a new trial, or remittitur. Union	7
Pacific debates whether we apply federal or state law to determine whether a jury	8
verdict is excessive. Our Supreme Court in Vivian v. Atchison, Topeka & Santa Fe	9
Railway Co., 1961-NMSC-093, ¶ 9, 69 N.M. 6, 363 P.2d 620, resolved this question,	10
concluding that state law applies. We, therefore, apply state law to determine	11
whether the verdict was excessive.	12
{37} 	We review whether a verdict is excessive de novo, as a matter of law. See	13
Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 49, 127 N.M. 47, 976 P.2d 999.	14
Although our review is de novo, we must remain mindful “of both the inherently	15
difficult task of assigning monetary value to nonmonetary losses and the proper roles	16
that the jury and the district court judge play in making this determination.” Morga	17
v. FedEx Ground Package Sys., Inc., 2022-NMSC-013, ¶ 18, 512 P.3d 774. “Given	18
the difficulty, as well as the lack of a fixed standard, in assessing noneconomic loss,	19
it is well settled that this valuation is left to the jury.” Id.	20

25
{38} 	“The jury’s award is excessive if (1) the evidence, viewed in the light most	1
favorable to the plaintiff, does not substantially support the award; or (2) there is an	2
indication of passion, prejudice, partiality, sympathy, undue influence, or a mistaken	3
measure of damages on the part of the fact[-]finder.” Id. ¶ 17 (alterations, internal	4
quotation marks, and citation omitted). This Court will disturb a jury’s verdict only	5
in extreme cases, “when the jury’s verdict is so against the weight of evidence that	6
it would be a grave injustice to allow the verdict to stand.” Id. ¶ 19 (internal quotation	7
marks and citation omitted).	8
{39} 	The jury awarded Plaintiff $1,750,000, approximately $200,000 of which was	9
for medical expenses and lost wages. Union Pacific claims the approximately	10
$1,550,000 for pain and suffering and other noneconomic damages “shocks the	11
conscience” and should be found by this Court to be excessive.	12
{40} 	Union Pacific’s recitation of the evidence in the record concerning Plaintiff’s	13
pain 	and 	suffering minimizes 	the injury established 	by evidence and 	draws	14
inferences in favor of the railroad, rather than in favor of Plaintiff, as required by our	15
standard of review. Plaintiff’s testimony described progressively worsening pain to	16
the point where it was almost unbearable before he had surgery in December 2014.	17
Plaintiff reported that his pain continued up through the time of trial. Plaintiff	18
reported mood changes due to the pain, making him impatient and quick to anger.	19
Plaintiff also presented evidence that he would need future medical care. He	20

26
explained that he had been left with “bulging disks” in his neck and that he would	1
need another fusion surgery in the future. Plaintiff’s wife substantiated these	2
accounts and described Plaintiff as “more depressed, more withdrawn.”	3
{41} 	Plaintiff also testified to the limited range of motion in his neck, and the	4
limitations that impairment imposed on his life. Plaintiff could no longer lift his arms	5
above his head. Plaintiff described many activities that he used to enjoy, in which he	6
could no longer participate. Plaintiff explained that the pain impacted his ability to	7
perform everyday tasks.	8
{42} 	We are not persuaded that this evidence is “clearly and palpably contrary to	9
the verdict,” or that “it is manifest to a reasonable certainty that justice has not been	10
done.” See Morga, 2022-NMSC-013, ¶ 21 (internal quotation marks and citation	11
omitted). We, therefore, reject Union Pacific’s claim that the jury’s award is	12
excessive because it is not supported by the evidence.	13
{43} 	Although Union Pacific also alleges passion and prejudice on the part of the	14
jury, the second consideration in determining whether damages are excessive, its	15
claim relies on an argument our case law has consistently rejected: that the size of	16
the noneconomic damages alone justifies an inference of passion or prejudice. See	17
id. ¶ 40. We have found that the award is supported by substantial evidence in the	18
record, and we, therefore, do not agree that the amount of the award alone evinces	19
passion or prejudice on the part of the jury.	20

27
{44} 	Because the damages awarded are not excessive, we affirm both the district	1
court’s denial of Union Pacific’s motion for a new trial and the court’s denial of	2
remittitur.	3
VII. 	Union Pacific Has a Right to an Offset From the Judgment for Payments	4
Covered by the Collective Bargaining Agreement’s Setoff Provision	5
{45} 	Assuming we do not reverse, Union Pacific argues that the district court erred	6
in refusing to offset $106,407.07 from Plaintiff’s judgment to avoid double payment	7
by Union Pacific for Plaintiff’s medical care. Union Pacific seeks setoff from the	8
judgment in the amount (1) of its payments under the health and welfare policy	9
subject to the railroad’s collective bargaining agreement, (2) of its payments for	10
medical expenses made by the RRB and subject to an RRB lien, and (3) of	11
supplemental sickness benefits paid by an insurer and subject to the insurer’s lien.	12
The district court denied Union Pacific’s postjudgment claim for the setoff of	13
$12,715.26 paid by the RRB for Plaintiff’s medical care on the basis that the money	14
is owed to the RRB, a nonparty, and not to Union Pacific. The district court did not	15
explain its rejection of Union Pacific’s setoff claim for $85,476.38 it paid under the	16
collective bargaining agreement, or of the $8,214.53 in supplemental sickness	17
payments paid by the insurer.	18
{46} 	Union Pacific’s $85,476.38 setoff claim is based on a provision in its	19
collective bargaining agreement that provides that medical and health benefits paid	20
in accordance with the terms of the collective bargaining agreement are not intended	21

28
to duplicate the “amount recovered from . . . the employing railroad,” and that such	1
benefits “will be offset against any right of recovery the employee may have against	2
the employing railroad for hospital, surgical, medical or related expenses.”	3
{47} 	Union Pacific’s setoff claim for $12,715.26 to pay off the RRB’s lien, was	4
based on 45 U.S.C. § 362(o), and 20 C.F.R. §§ 341.3 through-341.9 (2024), which	5
together create a statutory lien for reimbursement of benefits paid by the RRB. This	6
law, unlike the collective bargaining agreement, however, does not provide a right	7
to a setoff from the judgment for either the RRB or for Union Pacific. See 20 C.F.R.	8
§341.7 (2024). Union Pacific also provides no authority for its claim that the	9
supplement sickness benefits provided by an insurer are subject to setoff. Because	10
Union Pacific has not provided authority to support its assertion that a setoff to the	11
judgment to pay the RRB and insurer’s liens is mandatory, we rely on our	12
presumption of the correctness of the district court’s decision. See Corona v.	13
Corona, 2014-NMCA-071, ¶ 26, 329 P.3d 701 (“The appellate court presumes that	14
the district court is correct, and the burden is on the appellant to clearly demonstrate	15
that the district court erred.”). The same is true of the insurer’s lien for supplemental	16
sickness benefits. Without evidence or argument supporting a mandatory setoff from	17
the judgment, we assume that the district court’s judgment is correct.	18
{48} 	As to the $85,476.38 paid under the terms of the collective bargaining	19
agreement, we conclude that Union Pacific has demonstrated that those amounts	20

29
were paid pursuant to a collective bargaining provision specifically providing for a	1
setoff 	against 	an 	employee’s 	FELA 	judgment. 	Federal 	court 	decisions 	have	2
approved setoffs from FELA judgments against railroad employers where the right	3
to a setoff is specifically reserved in a collective bargaining agreement. 	See	4
Folkestad v. Burlington N., Inc., 813 F.2d 1377, 1381-83 (9th Cir. 1987) (citing	5
federal court decisions under 45 U.S.C. § 55 holding that provisions under collective	6
bargaining agreements providing for setoffs to indemnify railroads against FELA	7
liability should not be regarded as a collateral source, and should be enforced). This	8
Court in Washington v. Atchison, Topeka & Santa Fe Railway Co., reviewed this	9
federal law and found it consistent with New Mexico law allowing setoffs from state	10
law judgments as an appropriate means “‘to achieve equity and justice by adjusting	11
in one suit all conflicting claims between parties that [are] readily susceptible to an	12
expedient and final resolution.’” 1992-NMCA-066, ¶¶ 5, 7, 13, 114 N.M. 56, 834	13
P.2d 	433 	(quoting 	Sunwest 	Bank 	of 	Roswell, 	N.A. 	v. 	Miller’s 	Performance	14
Warehouse, Inc., 1991-NMSC-085, ¶ 7, 112 N.M. 492, 816 P.2d 1114).	15
{49} 	We, 	therefore, 	reverse 	the 	district 	court’s 	denial 	of 	Union 	Pacific’s	16
postjudgment motion for setoff of the amounts for Plaintiff’s medical care, the only	17
amounts expressly subject to setoff in the collective bargaining agreement.	18

30
CONCLUSION	1
{50} 	We remand to the district court with direction to determine the amount of the	2
setoff approved by this opinion and to reduce the judgment by that amount. We	3
otherwise affirm.	4
{51} 	IT IS SO ORDERED.	5
_____________________________	6
JANE B. YOHALEM, Judge	7
WE CONCUR:	8
_____________________________	9
GERALD E. BACA, Judge	10
_____________________________	11
KATHERINE A. WRAY, Judge	12