Martinez et al v. Continental Tire The Americas, LLC
Filing
421
MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs. The 255 Motion in Limine is granted in part. (ve)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
IRMA MARTINEZ, FELIPE MARTINEZ,
LARRY MUNN, JOSE PRIETO, and
LEE HUNT, as personal representative
of the estate of Abel Portillo, deceased,
Plaintiffs,
vs.
Case No. 1:17-cv-00922 KWR/JFR
CONTINENTAL TIRE THE AMERICAS,
LLC, An Ohio Limited Liability Company
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court upon Plaintiffs’ Motion in Limine to Exclude
Evidence or Argument Regarding Seat Belt use or non-use and to Exclude Defendant CTA’s
Biomechanical Expert, filed on December 23, 2019 (Doc. 255). Having reviewed the parties’
pleadings and the applicable law, the Court finds that Plaintiffs’ motion is well-taken and,
therefore, is GRANTED IN PART.
BACKGROUND
This case arises out of a single-vehicle accident allegedly resulting from the failure or
blowout of a left rear Continental tire. Defendant is the tire manufacturer. Plaintiffs were injured
in the incident and Abel Portillo died. Plaintiffs allege that manufacturing and design defects
caused the tire blowout.
DISCUSSION
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Plaintiffs seek to exclude all evidence or reference to the use or non-use of seat belts.
Defendant gives multiple cogent reasons why such evidence should be admitted. Nevertheless,
the Court finds that New Mexico and Tenth Circuit law require exclusion at trial of any mention
of the use or nonuse of seat belts.
I.
NMSA § 66-7-373(A) 1 applies and bars introduction of evidence of nonuse of seat
belts.
The Seat Belt Use Act requires “each occupant of a motor vehicle having a gross vehicle
weight of ten thousand pounds or less ... shall have a safety belt properly fastened about his body
at all times….” NMSA 1978 § 66-7-372(A) (emphasis added). “‘Gross vehicle weight’ means the
weight of a loaded vehicle[.]” NMSA § 66-1-4.7(D).
NMSA § 66-7-373(A) provides that “[f]ailure to be secured by a child passenger restraint
device or by a safety belt as required by the Safety Belt Use Act shall not in any instance constitute
fault or negligence and shall not limit or apportion damages.” NMSA § 66-7-373(A). Although
the plain language of the statute appears to bar the use of evidence of seat belt nonuse, Defendant
asserts that it does not apply here because the Ford F-350 at issue weighed more than 10,000
pounds. The Court disagrees.
The parties have presented evidence of the weight of the F-350. The parties have not
requested a hearing or shown cause why one is necessary to resolve this issue. D.N.M.LR-Civ. 7.6
(“a motion will be decided on the briefs unless the court sets oral argument”). The parties have
also not argued why the Court should not consider the attached exhibits. Therefore, the Court
looks to the exhibits provided by the parties.
1
The parties do not appear to dispute that New Mexico law applies as to whether seat belt evidence should be excluded
from trial. Doc. 264 at 5 n.5.
2
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The Court finds that the vehicle at issue likely weighed under 10,000 pounds. It appears
to be undisputed that the curb weight of the vehicle was 7,390 pounds. The occupants weighed a
total of 834 pounds. Finally, the trailer tongue weighed 300 pounds. At issue is the weight of the
equipment loaded into the vehicle. Defendant estimates the vehicle weighs approximately 10,170
pounds by estimating the likely weight of the equipment loaded in the vehicle.
The Court does not find Defendant’s estimation of the weight of the motor vehicle
persuasive.
First, Plaintiff’s expert stated he overestimated the weight to show that the vehicle
was unlikely loaded beyond the gross vehicle weight restriction. Doc. 264-1 at 6. Second,
Defendant’s expert Glennon concluded that the truck weighed approximately 9,515 pounds. Doc.
281-2, Ex. 2 at 4. Finally, the vehicle at issue was not weighed and the weight of the equipment
loaded therein was estimated.
Weighing this evidence, the Court concludes that it is more likely than not that the F-350
at issue weighed less than 10,000 pounds. 2 Therefore, the Court concludes that NMSA § 66-7373(A) applies and bars use of seat belt evidence to determine “fault or negligence and shall not
limit or apportion damages.” NMSA § 66-7-373(A).
II.
Evidence of use or nonuse of seat belt is otherwise inadmissible.
Alternatively, even if the F-350 weighed more than 10,000 pounds and NMSA § 66-7-
373(A) did not expressly bar evidence of the nonuse of seat belts, New Mexico law is clear that
evidence of nonuse of seat belts is simply inadmissible. Frederick v. Swift Transp. Co., 616 F.3d
1074, 1084 (10th Cir. 2010) (as to sleeper safety net in commercial motor vehicle, which is not
2
The parties did not provide the standard for determining preliminary factual questions bearing on the admissibility
of the evidence. The Court assumes it is by the preponderance of proof. Bourjaily v. United States, 483 U.S. 171,
175, 107 S. Ct. 2775, 2778, 97 L. Ed. 2d 144 (1987) (“We are therefore guided by our prior decisions regarding
admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these
matters be established by a preponderance of proof.”)
3
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covered by NMSA § 66-7-373, Tenth Circuit held that New Mexico law is “clear: specific evidence
of the nonuse of seat belts is simply inadmissible,”), quoting in part Norwest Bank New Mexico v.
Chrysler Corp., 127 N.M. 397, 981 P.2d 1215, 1224 (Ct.App. 1999) (although statute only required
seat belt use in front seats, court similarly excluded evidence of nonuse of seat belts in rear
passenger seats). These two cases both held that New Mexico law barred evidence of nonuse of
seat belt, even when the Seat Belt Use Act did not apply. Id. Therefore, the Court concludes that
New Mexico law bars evidence of the nonuse of seat belts in this case.
Even before § 66-7-373(A) was enacted, “a common law duty to wear a seat belt did not
exist …and with the enactment of this statute the legislature specifically declined to make failure
to wear a seat belt the basis for negligence or fault. Therefore, the statute does not affect the
substantive rights of defendants or plaintiffs. In New Mexico, there never was a “seat belt defense”
and there still is not a “seat belt defense.” Mott v. Sun Country Garden Prod., Inc., 1995-NMCA066, ¶ 14, 120 N.M. 261, 265, 901 P.2d 192, 196; Norwest Bank, 981 P.2d at 1223–24 (“In sum,
the common law of New Mexico does not impose any duty to wear seat belts, and the statutory
duty imposed on front seat occupants cannot form the basis for either liability or apportioning
damages in a civil lawsuit. After Mott and Thomas II, specific evidence of the nonuse of seat belts
is simply inadmissible in New Mexico's civil trials.”). The Seat Belt Use Act did not modify this
common law rule. Norwest Bank, 981 P.2d at 1224.
The Seat Belt Use Act was enacted following the New Mexico Supreme Court’s decision
in Thomas, which concluded that no common law duty to wear a seat belt existed, and such
evidence was inadmissible. Norwest Bank, 981 P.2d at 1223 (recounting history of admissibility
of seat belt use in New Mexico), citing Thomas v. Henson, 102 N.M. 326, 327, 695 P.2d 476, 477
(1985). The New Mexico Supreme Court left the creation of any duty to wear a seat belt up to the
4
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legislature. Id. The New Mexico legislature subsequently enacted the Seat Belt Use Act and
declined to allow the admission of evidence of seat belt use. Id.
Defendant argues that because the Seat Belt Use Act does not cover commercial motor
vehicles, the legislature intended for seat belt use to be admissible as to those vehicles. The Court
disagrees. New Mexico law is clear that there is no common law duty to wear a seat belt, and there
is no evidence that the legislature intended to allow the admission of seat belt use in commercial
motor vehicles through the Seat Belt Use Act. Norwest Bank, 981 P.2d at 1224 (“The Act in one
sense simply leaves unchanged the common-law rule that there is no duty to wear seat belts. If
there is no duty, specific evidence of use or nonuse is irrelevant to any issue in the case, in
particular apportionment of damages.”).
As recently as 2010, the Tenth Circuit affirmed exclusion of evidence of seat belt use in a
case involving a commercial motor vehicle in which the Seat Belt Use Act did not apply. The
Tenth Circuit “not believe that New Mexico courts would permit the introduction of evidence
regarding this particular passenger safety restraint.” Frederick, 616 F.3d at 1084.
The Tenth
Circuit noted that “New Mexico law is clear: specific evidence of the nonuse of seatbelts is simply
inadmissible.” Frederick, 616 F.3d at 1084 (quoting Norwest Bank N.M., N.A. v. Chrysler Corp.,
1999-NMCA-070, 127 N.M. 397) (internal quotation marks omitted). The Court finds this
published Tenth Circuit case on point and concludes that evidence of nonuse of seat belts is
inadmissible even if the Seat Belt Use Act does not apply.
Defendant argues that the New Mexico Supreme Court has since overruled these cases.
The Court disagrees. Defendant cites to Rodriguez v. Del Sol Shopping Center Assoc., L.P., 2014NMSC-014, ¶¶ 3, 25, 326 P.3d 465, 468, 474 (overruling “prior cases insofar as they conflict with
this opinion’s clarification of the appropriate duty analysis in New Mexico” and holding “courts
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must articulate specific policy reasons, unrelated to foreseeability considerations, when deciding
whether a [party] does or does not have a duty or that an existing duty should be limited”). That
case did not address the admissibility of evidence of the use of seat belts. Rather, it overruled
cases that relied on a foreseeability analysis when determining duty. Id. Nothing in Rodriguez
suggests that the New Mexico Supreme Court intended to create the duty to wear a seat belt.
Defendant also argues Plaintiffs may open the door to cross-examination on seat belt use
through the testimony of their expert witness Brian McDonald. Plaintiffs’ expert will testify about
the value of a statistical life. Defendant asserts that this value incorporates risky behavior,
including tendency to wear a seat belt. At this time, the Court declines to rule that Plaintiffs have
opened the door to cross-examination on the nonuse of seat belts. As explained above, New
Mexico law is clear that failure to wear a seat belt cannot factor into the award or apportionment
of damages. In other words, the New Mexico legislature and judiciary have made the policy choice
to not lower the amount of damages because of a victim’s risky decision to not wear a seat belt.
Therefore, the Court at this time is not inclined to allow any cross-examination bearing on seat
belt use.
Finally, Defendant argues that the New Mexico Motor Carrier Act imposed a duty on TracWork, the victims’ employer to follow safety rules and act with ordinary care. NMSA 1978 §§
65-3-1 et seq. However, Defendant has not cited to any statute therein that would specifically
overrule the common law exclusion of seat belt evidence.
Defendant seeks to introduce evidence that the victims’ employer, Trac-Work, failed to
follow safe practices as to the operation of the vehicle. Plaintiffs did not address this argument,
so the Court will not exclude all evidence that Trac-Work failed to exercise care to keep Mr.
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Portillo safe. However, the Court will carefully circumscribe any evidence to prevent admission
of the nonuse of seat belts.
III.
Expert testimony of Mr. Wheeler.
Plaintiffs also seek to exclude the testimony of Defendant’s expert Jeffrey Wheeler.
Plaintiffs do not appear to be raise a Daubert issue. Rather, they assert that he should be excluded
because he will testify about seat belt use. As explained above, under New Mexico law an expert
witness may not testify that a plaintiff’s injuries or death were caused by failure to wear a seat belt.
See Mott, 1995-NMCA-066, ¶ 22. Defendant admits that Wheeler will testify that “passengers
who are not ejected during a rollover accident experience fewer and less severe injuries and are
more likely to survive.” Doc. 264 at 2. Mr. Wheeler’s report discusses the different forces at play
when someone is ejected from a vehicle or not ejected, and the effectiveness of seat belt use. Doc.
255-1 at 10-20.
New Mexico courts have refused to allow expert testimony that injuries would have been
less severe had the decedent been wearing a seat belt. Mott v. Sun Country Garden Prod., Inc.,
1995-NMCA-066, ¶ 24, 120 N.M. 261, 267, 901 P.2d 192, 198 (refusing expert testimony where
“Defendant's argument is that Michael would have suffered less severe injuries had he used his
seat belt.”). Therefore, the Court will exclude any testimony by Mr. Wheeler that discusses the
nonuse of seatbelts, or that Mr. Portillo would have experienced lesser forces had he not been
ejected.
However, the Court acknowledges that Plaintiffs will likely seek to introduce evidence on
pain and suffering. Defendant will offer the testimony of a medical examiner on Mr. Portillo’s
injuries. However, Defendant will also offer Mr. Wheeler’s testimony on the forces applied to the
body during an accident.
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Plaintiffs raise narrow objections to Mr. Wheeler’s testimony. Plaintiffs did not cite to
Daubert or Fed. R. Evid. 702. Therefore, the Court finds that they are not raising a Daubert
motion. The Court will not address Daubert sua sponte in this opinion as to do so is prejudicial to
the parties.
Rather, in one sentence Plaintiffs assert that Mr. Wheeler is not qualified to give a medical
opinion. Based on the record before the Court, including Mr. Wheeler’s report and curriculum
vitae, it does not appear that Mr. Wheeler is offering a medical opinion. Rather, biomechanics is
“the study of the action of external and internal forces on the living body, especially on the skeletal
system.” Tuato v. Brown, 85 F. App'x 674, 677 (10th Cir. 2003). “Biomechanical experts have
extensive knowledge about how human bodies move when forces are applied to them and thus
may provide testimony as to how vehicle occupants move and are impacted in vehicular
accidents.” Ingraham v. KIA Motors America, Inc., 2007 WL 2028940 W.D.Okla., n. 12 (citing
Nash v. General Motors Corp., 153 P.3d 73, 75, n. 1 (Okla. Civ.App.2006)). “Biomechanical
testimony can offer, distinct from medical opinions, testimony concerning the biomechanical
forces and relationship between these forces and the medical opinions of the medical experts.”
Finn v. BNSF Ry. Co., No. 11-CV-349-J, 2013 WL 462057, at *2 (D. Wyo. Feb. 6, 2013), quoted
in Berry v. Transportation Distribution Co., No. 12-CV-488-JED-FHM, 2013 WL 6271605, at *2
(N.D. Okla. Dec. 4, 2013). The Court finds that biomechanics, in general, does not encroach into
medical opinion territory. In their motion, Plaintiffs have not identified which specific testimony
would impermissibly provide medical opinion.
Plaintiffs also assert that the remainder of Mr. Wheeler’s testimony is irrelevant. The Court
finds that the description of forces suffered by Mr. Portillo may be relevant to the jury’s
determination of pain and suffering damages.
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Therefore, the Court will allow Mr. Wheeler to testify on limited grounds about the forces
following ejectment. However, the Court will not allow Mr. Wheeler to testify about the nonuse
of seat belts and how the use of a seatbelt would have changed the forces applied to Mr. Portillo.
CONCLUSION
Evidence or argument bearing on the use or nonuse of seat belts is inadmissible under New
Mexico law, whether or not the Seat Belt Use Act applies. The Court will exclude testimony of
Mr. Wheeler to the extent it mentions seat belt use.
IT IS THEREFORE ORDERED that Plaintiff’s Motion in Limine (Doc. 255) is
GRANTED IN PART.
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