RADLv.UNIV. OF UTAH

Utah Court of AppealsMay 22, 2003
2003 UT App. 164 (Utah Ct. App. 2003)

Case No. 20010814-CA.

Filed May 22, 2003. (Not For Official Publication)

Appeal from the Third District, Salt Lake Department, The Honorable Tyrone E. Medley.

Vickie L. Radl, Layton, Guardian Ad Litem Pro Se.

David G. Williams, Terence L. Rooney, and David Mull, Salt Lake City, for Appellee.

Before Judges Davis, Orme, and Thorne.


MEMORANDUM DECISION


Appellants John Joseph Radl III and his parents, Vickie Radl and John Radl (Radls), appeal a jury verdict finding that the University of Utah Health Sciences Center (the University) did not breach the applicable standard of care.

We review all evidence in a light most favorable to the jury verdict.See Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991). A party challenging a factual finding on appeal must marshal the evidence supporting the verdict, i.e., must "present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists," and then demonstrate that there is "a fatal flaw in the evidence." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991). If an appellant fails to satisfy this substantial burden, the challenge to the sufficiency of the evidence must fail.

To meet the marshaling burden and allow the appellate court to review a claim of insufficiency of the evidence, an appellant must provide an adequate record on appeal. Rule 11(e)(2) of the Utah Rules of Appellate Procedure states that "[i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Neither the court nor the opposing party is obligated to correct deficiencies in the record.See Utah R.App.P. 11(e)(2).

Although Radls challenge the sufficiency of the evidence to support the jury finding that the University did not breach the applicable standard of care, they did not provide a complete record of the evidence relevant to this finding. The partial trial transcript provided by Radls includes testimony of only five out of over twenty witnesses who testified at trial. In addition, Radls often mistakenly rely upon deposition testimony taken during discovery that was not submitted to the jury at trial or was offered only for impeachment. The only expert testimony on the standard of care included in the record is the testimony of Dr. Norton and Dr. Koschnitzke, both of which support the jury's finding of no breach of the standard of care. The testimony of Radls' own medical expert, and that of the University's medical experts, was not provided to this court. In the absence of an adequate record, Radls cannot satisfy their burden on appeal to marshal the evidence, and this court cannot perform meaningful appellate review of the evidentiary support for the verdict. See Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct.App. 1990) (stating that absent a transcript of relevant evidence, appellate court presumes judgment was supported by sufficient evidence).

In addition, the record does not establish that any of the remaining claims were presented to the trial court and preserved for appeal. Therefore, we do not consider the claims of judicial bias, conspiracy, witness tampering, and related claims that are apparently asserted for the first time in this appeal. See Ong Int'l (U.S.A.) Inc. v. 11th Avenue Corp., 850 P.2d 447, 455 (Utah

1995) (stating that as a general rule appellate courts will not consider issue raised for first time on appeal).

Accordingly, we affirm the judgment of the district court.

James Z. Davis, Judge, Gregory K. Orme, Judge, and William A. Thorne Jr., Judge, concur.