## Facts

- Twelve-year-old Everett Rael suffered an eye injury when a firework “suddenly and unexpectedly exploded.”
- The firework was purchased from F & S Co., a New Mexico retail seller, and had moved through an upstream supplier (Onda Enterprises, Ltd.) and an overseas manufacturer.
- Ramon Rael sued for the child’s injuries and his own derivative damages, naming Onda and F & S.
- At trial, Everett testified to pain and headaches; the medical evidence did not establish to a reasonable medical probability that future pain would occur, and no expert supported a likelihood of future headaches.
- The jury awarded $339 to the father and $7,000 to the child, with the child’s award including future pain and suffering, against Onda and F & S jointly and severally.
- The trial court dismissed cross-claims for indemnity between F & S and Onda.

## Issues

1. Whether the evidence supported instructing the jury that it could award damages for future pain and suffering when the claimed future symptoms were subjective and not supported by expert medical testimony or comparable competent proof.
2. Whether a retailer held liable to an injured plaintiff was entitled to indemnity from an upstream supplier when the retailer presented no evidence establishing a factual basis for indemnity.

## Decision

- The court held it was reversible error to instruct on future pain and suffering based on subjective complaints unsupported by expert testimony or other competent evidence of reasonable probability.
- The court reversed and remanded for a new trial limited to damages.
- The court affirmed dismissal of F & S’s cross-claim for indemnity against Onda because F & S failed to present evidence supporting indemnity, without deciding whether New Mexico recognizes indemnity in the products-liability distribution chain.

## Legal Principles

- Future pain and suffering may be submitted to the jury without expert medical testimony when the injury is objective and the nature of the injury itself permits a reasonable inference of future pain.
- When claimed future pain is subjective (e.g., headaches), an award for future pain and suffering requires expert medical testimony or other competent evidence establishing a reasonable probability of future pain; otherwise, a future-pain instruction invites speculation.
- A party seeking indemnity must present evidence supporting the factual basis for shifting liability (such as proof the indemnitor is primarily responsible or that the indemnitee’s liability is only technical); absent such evidence, indemnity fails even if other jurisdictions recognize similar theories.
- An appellate court may resolve an indemnity claim on evidentiary insufficiency and decline to decide broader questions about whether an indemnity doctrine should be adopted.

## Conclusion

The court set aside the damages award to the extent it permitted recovery for future pain and suffering unsupported by competent proof of probable future subjective symptoms, ordered a new trial on damages only, and affirmed denial of the retailer’s indemnity cross-claim due to lack of supporting evidence.


Rael v. F & S Co., 612 P.2d 1318 (N.M. Ct. App. 1979)