                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 27 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RICK MAKER,

                Plaintiff-Appellant,

    v.                                                   No. 97-6260
                                                     (D.C. No. 96-CV-558)
    STATE FARM MUTUAL                                    (W.D. Okla.)
    AUTOMOBILE INSURANCE
    COMPANY,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before TACHA and McKAY, Circuit Judges, and BROWN, ** Senior District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff filed suit to recover benefits under the uninsured motorist

provision of his policy with defendant for injuries sustained in an automobile

accident. After trial, the jury found damages in the amount of $11,000 and

contributory negligence by plaintiff of 46%. Plaintiff moved for a new trial on

the issue of damages. The district court denied the motion. Plaintiff appealed,

arguing (1) the award of damages was inadequate and contrary to the evidence;

and (2) the award of damages was based on incompetent, irrelevant, immaterial,

irregular, and prejudicial evidence. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

      We review the district court’s denial of a new trial for an abuse of

discretion. See Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1193

(10th Cir. 1997). Our focus is “on whether the verdict is clearly, decidedly or

overwhelmingly against the weight of the evidence.” Getter v. Wal-Mart Stores,

Inc., 66 F.3d 1119, 1125 (10th Cir. 1995) (further quotation omitted).

      Plaintiff first argues that he is entitled to a new trial on the issue of

damages because the damages awarded were inadequate and contrary to the

evidence presented. According to plaintiff, the jury verdict accounted only for

medical expenses and failed to reflect an award for pain, suffering, disfigurement,


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and permanent disability. Plaintiff also speculates that the jury wrongly

considered his use of alcohol in determining the amount of damages.

      In its order denying plaintiff’s motion for new trial, the district court

concluded that plaintiff failed to provide any evidence showing that the jury did

not consider his pain and suffering or that the jury improperly considered his use

of alcohol in determining the amount of damages. We agree.

      Although plaintiff testified without objection that his medical expenses

totaled $11,030.20, some of the medical expense exhibits were difficult to read.

Indeed, the jury sent a note to the judge indicating that it could not read the bills

provided. 1 Based on the uncertainty of the exhibits, the jury, as fact finder,

reasonably could have decided that the amount of medical expenses were less than

plaintiff had stated. See Dugan v. EMS Helicopters, Inc., 915 F.2d 1428, 1430

(10th Cir. 1990) (“[I]t is the sole province of the jury to appraise credibility, draw

inferences, determine the weight to be given testimony and to resolve conflicts in

the facts.”). Thus, the jury’s general verdict reasonably could have included pain,

suffering, disfigurement, and permanent impairment. See Starceski v.

Westinghouse Elec. Corp., 54 F.3d 1089, 1100 (3d Cir. 1995) (where jury returns




1
      Nothing in the parties briefs or appendices indicates how the district court
responded to the note.

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general verdict, “[t]he law presumes the existence of fact findings implied from

the jury’s having reached that verdict”) (further quotation omitted).

        Plaintiff fails to provide any evidence to the contrary. Likewise, he

provides no evidence showing the jury improperly considered his use of alcohol in

reaching its verdict. Accordingly, we conclude plaintiff failed to show the

amount of damages was inadequate or contrary to the evidence.

        Next, plaintiff argues that the district court improperly admitted the results

of a blood alcohol test, which he describes as incompetent, irrelevant, immaterial,

irregular, and prejudicial. Plaintiff maintains this evidence was admitted without

any foundation.

        This court gives deference to the district court’s evidentiary rulings,

reviewing for an abuse of discretion. See Cartier v. Jackson, 59 F.3d 1046, 1048

(10th Cir. 1995); see also Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d

1515, 1529 (10th Cir. 1997) (stating that sufficiency of foundation is matter

within district court’s discretion). “In reviewing a court’s determination for

abuse of discretion, we will not disturb the determination absent a distinct

showing it was based on a clearly erroneous finding of fact or an erroneous

conclusion of law or manifests a clear error of judgment.” Cartier, 59 F.3d at

1048.




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      Our review is hampered by plaintiff’s failure to provide us with a complete

record on this issue. While plaintiff apparently had objected to the admission of

the test results as a general matter, nothing in the appendices indicates that

plaintiff specifically objected to the foundation for the blood alcohol test results.

See Appellee’s Supp. App. tab 5 (plaintiff does not object to district court’s

ruling that defendant need not call witness to identify Oklahoma State Bureau of

Investigation blood alcohol records). The district court stated in its order denying

plaintiff’s motion for a new trial that the issue of admission of the blood tests was

thoroughly briefed by the parties before trial and the court ruled on the issue. The

briefs, the district court’s ruling, and the motion for new trial, however, were not

included in the appendices. Without an adequate record, we are not inclined to

decide the district court abused its discretion. See Roberts v. Roadway Express,

Inc., Nos. 96-1554, 97-1093, 1998 WL 352629, at *4 (10th Cir. July 2, 1998).

      In any event, from the portions of the record we do have, it appears that the

blood alcohol test results were relevant, and that any prejudice did not

substantially outweigh the relevance. See Crane v. Mekelburg, 728 F.2d 439, 442

(10th Cir. 1984). The record contained much other evidence, including plaintiff’s

own testimony, that he had been under the influence of alcohol at the time of the

accident. The jury had the opportunity to judge the credibility and weight of all

of this evidence in reaching its verdict. See Dugan, 915 F.2d at 1430. If there


                                          -5-
were any foundation problems, they were cured by the testimony of the officer

who received the test results. See Appellee’s Supp. App. tab 6; see also Fortier v.

Dona Anna Plaza Partners, 747 F.2d 1324, 1332-33 (10th Cir. 1984) (foundation

problems cured by testimony of witness with knowledge); Crane, 728 F.2d at 441-

42 (sufficient evidence to support finding that blood alcohol concentration report

was what defendant claimed it to be). The district court did not abuse its

discretion in admitting the blood alcohol test.

      We conclude the district court did not abuse its discretion in denying

plaintiff’s motion for a new trial. Accordingly, the judgment of the United States

District Court for the Western District of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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