* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RICK MAKER,

Plaintiff-Appellant,

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

ORDER AND JUDGMENT *

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

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 t he amount of $11,000 and contributory negligence by plaintiff of 46%. Plain tiff moved for a new trial on the issue of damages. The district court denied th e 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 incompete nt, irrelevant, immaterial, irregular, and prejudicial evidence. Exercising ju risdiction under 28 U.S.C. § 1291, we affirm. We review the district court’s denial of a new tria l 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 ver dict 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 quot ation 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 ju ry verdict accounted only for medical expenses and failed to reflect an award forpain, suffering, disfigurement,1 Nothing in the parties briefs or appendices indicat es how the district court

responded to the note. -3- and permanent disability. Plaintiff also speculate s that the jury wrongly considered his use of alcohol in determining the am ount of damages. In its order denying plaintiff’s motion for new tri al, the district court concluded that plaintiff failed to provide any evid ence 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. W e agree. Although plaintiff testified without objection thathis medical expenses totaled $11,030.20, some of the medical expense exh ibits were difficult to read. Indeed, the jury sent a note to the judge indicatin g 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 me dical 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 testim ony and to resolve conflicts in the facts.”). Thus, the jury’s general verdict rea sonably 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 ret urns-4-

general verdict, “[t]he law presumes the existence of fact findings implied from the jury’s having reached that verdict”) (further q uotation omitted). Plaintiff fails to provide any evidence to the cont rary. Likewise, he provides no evidence showing the jury improperly co nsidered his use of alcohol in reaching its verdict. Accordingly, we conclude pla intiff failed to show the amount of damages was inadequate or contrary to the evidence. Next, plaintiff argues that the district court impr operly admitted the results of a blood alcohol test, which he describes as inco mpetent, irrelevant, immaterial, irregular, and prejudicial. Plaintiff maintains th is 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 sufficien cy of foundation is matter within district court’s discretion). “In reviewing a court’s determination for abuse of discretion, we will not disturb the determ ination 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 jud gment.” Cartier , 59 F.3d at 1048.-5-

Our review is hampered by plaintiff’s failure to pr ovide us with a complete record on this issue. While plaintiff apparently h ad objected to the admission of the test results as a general matter, nothing in th e appendices indicates that plaintiff specifically objected to the foundation f or 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 iden tify Oklahoma State Bureau of Investigation blood alcohol records). The districtcourt stated in its order denying plaintiff’s motion for a new trial that the issue o f 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 re cord, we are not inclined to decide the district court abused its discretion. S ee 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 th e credibility and weight of all of this evidence in reaching its verdict. See Dugan , 915 F.2d at 1430. If there-6-

were any foundation problems, they were cured by th e 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) (foundati on problems cured by testimony of witness with knowled ge); Crane , 728 F.2d at 441- 42 (sufficient evidence to support finding that blo od alcohol concentration report was what defendant claimed it to be). The districtcourt did not abuse its discretion in admitting the blood alcohol test. We conclude the district court did not abuse its di scretion in denying plaintiff’s motion for a new trial. Accordingly, t he judgment of the United States District Court for the Western District of Oklahomais AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge