UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 00-31409 _______________________

NORMA H. DUHON and TURNEY J. DUHON, Plaintiffs-Appellants,

versus

LUTHER JAMES MARCEAUX, CALVIN JAMES MARCEAUX, and COLONIAL COUNTY MUTUAL INSURANCE COMPANY, Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana, Lafayette-Opelousas Division 99-CV-203 _________________________________________________________________ February 25, 2002

Before JONES, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiffs Norma and Turney Duhon appeal from a final

judgment entered for the defendants in this negligence action. The

parties tried the case twice before juries. The first jury

returned a confusing and inconsistent verdict awarding modest

damages to Duhon. Both parties filed motions for a partial new

trial, and the district court vacated the first judgment in its

entirety. In the second trial, the jury found that defendant

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Luther Marceaux was not negligent, and the district court entered

judgment for the defendants. We affirm the judgment and hold that

(1) the district court’s order vacating the judgment after the

first trial was valid; (2) the district court did not abuse its

discretion in vacating the judgment in its entirety, rather than

ordering a new trial on damages alone (as Duhon had requested); and

(3) the district court did not abuse its discretion in granting the

defendants’ motion in limine prior to the second trial.

I. FACTS AND PROCEDURAL HISTORY

This case arises from a traffic accident on Interstate 10

near Lafayette, Louisiana. Luther Marceaux, the driver of a

tractor-trailer, crashed into Norma Duhon’s pickup truck at a speed

of approximately 25 miles per hour. Norma Duhon and her husband,

Turney, filed an action in state court against Luther Marceaux;

Calvin Marceaux, the owner of the tractor-trailer; and Colonial

County Mutual Insurance Company, Marceaux’s insurer. The

defendants removed the case to federal court.

The case was tried before a jury in February 2000. The

jury found in favor of Duhon, but their verdict was troubling in

several respects. First, the jury awarded Duhon approximately

$35,000 for medical expenses and property damage but awarded

nothing for Norma Duhon’s pain and suffering or Turney Duhon’s loss

of consortium. As the Duhons emphasized in their motion for a new

trial on damages, “To award special damages for medical expenses

2 and lost wages, but not for general damages -- personal injury,

pain and suffering, etc. -- is, as a matter of Louisiana law, to

err.” Pagan v. Shoney’s, Inc.,

(5th Cir. 1991).

Second, the jury concluded that Norma Duhon was 40% at

fault even though her negligence was not a proximate cause of the

accident. Clearly, if the jury had concluded that Duhon’s

negligence was not a cause of the accident, they should not have

reached the comparative fault question. Although Duhon now

characterizes these inconsistent findings as a “glitch” caused by

a poorly-worded jury interrogatory form, the parties and the court

engaged in a lengthy sidebar discussion in which it was agreed that

the jury seriously misunderstood their instructions. At that time,

the district court decided to disregard the jury’s comparative

fault answer.

After the district court had entered judgment for Duhon,

both parties filed timely motions for a new trial. Duhon requested

a new trial on damages because of the jury’s failure to award

general damages. Marceaux emphasized that the jury’s findings as

to causation and comparative fault were irreconcilable and that the

circumstances suggested that the jury rendered a compromise

verdict. Marceaux thus requested that the court grant a new trial

on the issue of liability if the court granted a new trial as to

damages.

The district court conducted a hearing on these motions

and ordered that the judgment be “vacated and set aside as to all

3 parties and all issues.” Although the district court’s reasons

were not included in the written order, the court stated that its

decision was based on “oral reasons assigned” at the hearing held

earlier that day. In this same order, the district court denied as

moot both parties’ motions for a new trial.

The district court scheduled a new trial for October

2000. Prior to the second trial, the district court granted

Marceaux’s motion in limine to exclude opinion testimony of the

highway patrolman who had investigated the accident. Although the

officer testified at the second trial, he was not permitted to

state his conclusions as to which party was responsible for the

accident.

The second jury found that Marceaux was not negligent,

and the court entered judgment for the defendants. This appeal

followed.

II. DISCUSSION

A

First, Duhon contends that the district court lacked

jurisdiction to conduct the second trial because the court’s order

vacating the first judgment did not comply with Federal Rule of

Civil Procedure 59(d). We review this issue de novo.

Duhon makes much of the fact that the district court did

not explicitly order a new trial but merely vacated the judgment

entered on the first jury verdict. While we agree with the Eighth

4 Circuit that a district court “cannot implicitly grant a new trial

under Rule 59,” Copper v. City of Fargo,

(8th

Cir. 1999), we are not faced with that situation here. In Copper,

the district court entered a judgment awarding nominal damages to

the plaintiff. Suggesting that the jury may have been misled by

the jury instructions, the district court invited the parties to

file motions for a new trial. The plaintiffs filed a motion for

new trial on damages only, which the district court denied three

months later. The Eighth Circuit noted that “no further action

occurred in the case” until the parties and the district judge met

to schedule a new trial.

Although the parties implicitly

consented to a new trial, the district court in Copper left the

first judgment intact, yet proceeded to reconsider the substantive

issues of the case and dispose of them by summary judgment, and

thereafter conducted a second jury trial on damages. Such is

plainly not the case here: after holding a hearing on the pending

new trial motions, the district court vacated the first judgment

before proceeding to schedule and conduct a second trial.

Duhon also argues that the district court’s order

vacating the first judgment was invalid because it was issued more

than 10 days after the judgment. See Fed. R. Civ. P. 59(d)(“No

later than 10 days after entry of judgment the court, on its own,

may order a new trial for any reason that would justify granting

one on a party’s motion.”). However, as this court has explained,

5 the 10-day rule applies only when no motion for a new trial is

pending. See Tarlton v. Exxon,

(5th Cir.

1982)(citing the Advisory Committee Note to the 1966 amendment to

Rule 59(d)); see also WRIGHT & MILLER, 11 FED. PRAC. & PROC. CIV. 2D §

2813 (explaining that a district court has the power, “in cases in

which there has been a timely motion for a new trial, to grant a

new trial after the ten-day period has expired on a ground not

relied on in the motion”). In this case, both parties filed timely

motions for a new trial, and the court was permitted to order a new

trial for reasons not articulated in the pending motions, even

though more than 10 days had passed since the entry of judgment.

Duhon also contends that the district court’s order was

fatally defective because the court failed to explain its reasons

for vacating the first judgment. See Fed. R. Civ. P. 59(d)(“After

giving the parties notice and an opportunity to be heard, the court

may grant a timely motion for a new trial for a reason not stated

in the motion. When granting a new trial on its own initiative or

for a reason not stated in the motion, the court shall specify the

grounds in its order.”). As noted above, the order states that the

judgment was vacated for reasons given during the hearing earlier

that day. Although Duhon now asserts that the district court’s

reasons were unclear, Duhon has failed to provide this court with

a transcript of the April 6th hearing on the new trial motions. By

failing to produce a suitable record on appeal, Duhon has

effectively waived her right to challenge the court’s order on this

6 ground. See Richardson v. Henry,

(5th Cir.

1990)(dismissing an appeal for failure to provide a transcript);

Deines v. Vermeer Manufacturing Co.,

(10th

Cir. 1992)(holding that the appellant’s failure to provide a

suitable record rendered the appellant’s contentions unreviewable).

In sum, Duhon has presented no persuasive argument that the

district court’s vacatur of the first judgment was impermissible

under Rule 59(d).

B

Second, Duhon contends that the district court abused its

discretion in granting a new trial on all issues, rather than on

damages only.1 “Our review of a district court’s decision to grant

a new trial is broader than our review of a district court’s denial

of a new trial, but the standard remains one of abuse of

discretion.” Reddin v. Robinson Property Group Ltd. Partnership,

(5th Cir. 2001).

Our review of this issue is hampered by Duhon’s failure

to provide this court with the district court’s account of its

reasons for granting a new trial. Nevertheless, the district court

knew that it would probably have to conduct a new trial on damages

anyway; that the issues of negligence (including comparative

negligence) and causation were vigorously contested; that the jury

misunderstood their instructions with regard to these contested

1 We assume for the sake of argument that a new trial on damages would have been required under Pagan v. Shoney’s, supra.

7 issues; and that the jury’s verdict -- that Duhon was 40% at fault

even though her negligence was not a proximate cause of the

accident -- simply made no sense. Under these circumstances, the

district court’s decision to grant a new trial on all issues,

rather than on damages alone, does not constitute an abuse of

discretion.

C

Third, Duhon contends that the district court erred in

granting (prior to the second trial) Marceaux’s motion in limine to

exclude Officer Chad Gaudet’s opinion testimony as to who caused

the accident.2 We review the district court’s evidentiary rulings

for an abuse of discretion. Reddin,

.

Marceaux’s motion in limine was based on Rule 701:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701. It is undisputed that Officer Gaudet was not

qualified to testify as an expert in accident reconstruction and

that he did not witness the accident. As a general rule, police

officers’ lay “opinions as to the cause of an automobile accident

formed by viewing subsequent evidence at the scene” are excluded

2 At the first trial, Officer Gaudet testified that, in his opinion, the accident was caused by Marceaux’s inattentiveness.

8 under Rule 701. See

§22; Ernst v. Ace Motor Sales,

Inc.,

(E.D. Pa. 1982), aff’d without op.,

(3d Cir. 1982)(officer’s lay opinion testimony was

admissible only to the extent that it pertained to the point of

impact). As Duhon cites no authority to the contrary,3 we conclude

that the district court did not abuse its discretion in granting

Marceaux’s motion in limine.

Alternatively, Duhon suggests that the district court

abused its discretion in excluding Officer Gaudet’s accident

report. However, the motion in limine did not address the

admissibility of the accident report, and the district court

specifically stated that the report could be used as long as Duhon

redacted those portions of the report that expressed an opinion

about the cause of the accident. Then, at trial, Duhon asked

Officer Gaudet to read from the narrative section of the report,

but Duhon never sought to admit the accident report itself into

evidence. There can be no error here inasmuch as the district

court did not exclude the accident report, either in its ruling on

the motion in limine or during the trial itself.

3 Specifically, Duhon cites no decision in which Rule 803(8)(C) (the public records exception) has been applied to conclusions reached in police reports. See Fed. R. Evid. 803(8)(“Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings . . . , factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”). In other contexts, this court still distinguishes between admissible findings of fact and inadmissible evaluative conclusions or opinions in official reports. See, e.g., Smith v. Isuzu Motors Ltd.,

, 862 (5th Cir. 1998).

9 III. CONCLUSION

Because we find no reversible error in the district

court’s decisions to order a new trial and exclude the officer’s

opinion testimony, the judgment of the district court is AFFIRMED.

10