The New Mexico Supreme Court has changed the “presumption of prejudice” that attaches to extraneous juror communications to a standard that requires a party moving for a new trial based on such communications to prove a reasonable probability of prejudice. Kilgore v. Fuji Heavy Indus. Ltd., No. 31,750 (N.M., decided August 3, 2010). The court also held that “an evidentiary hearing, rather than a new trial, typically is the appropriate remedy.”
The court clarified its standard in a case involving an allegedly defective seat belt that purportedly failed in a Subaru rollover accident that resulted in the plaintiff’s quadriplegia. A jury rendered a defense verdict, and later the plaintiff learned that one of the jurors had spoken to the owner of a Subaru auto repair shop. This individual apparently told the juror that “he had never heard of a Subaru seat belt buckle opening in an accident.” The plaintiff submitted the repair shop owner’s affidavit with a request for new trial, arguing that the affidavit established that the juror received extraneous information, and, under New Mexico law, “the Court must therefore presume prejudice” and grant her motion. The trial court denied the motion without conducting an evidentiary hearing. An intermediate appellate court affirmed, finding the affidavit insufficient to raise a presumption of prejudice.
The New Mexico Supreme Court explored the law relating to the impeachment of a jury verdict, expressly disavowed “any further reference to a ‘presumption of prejudice’ in our case law because, in practice, the burden does not shift to the opposing party to disprove prejudice,” and indicated that the new standard would be referred to as the “probability of prejudice.” The court established the factors a court should consider in determining whether that probability exists, and applying the factors, determined that the affidavit was sufficient to establish that “material extraneous to the trial actually reached the jury” and that it was relevant to the case being tried. The court remanded the case for an evidentiary hearing “in which Plaintiffs will have an opportunity to prove a reasonable probability of prejudice.”