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Dupree v. Plantation Pointe9/9/2003
testified that the Windsor Place employees were correct in documenting and communicating Mr. Duff's behavior with the doctors and in following the doctor's orders.
. In addition to liability, Ms. Sanders' injuries and damages were also contested at trial. Dr. David Marion testified about Ms. Sanders' injuries. Dr. Marion testified that he only observed Ms. Sanders on one occasion and that he did not review all of her medical records. On cross examination, Dr. Marion conceded that he could not testify to a reasonable degree of medical certainty as to how the alleged incident affected Ms. Sanders.
. Ms. Kimberly Thompson and Ms. Debbie Porter, both certified nurse's aides working on the night in question, testified that when they went into Ms. Sanders' room after the incident. They testified that Ms. Sanders appeared to be calm and not agitated, as if nothing unusual had occurred.
. No other evidence as to damages allegedly suffered by Ms. Sanders was presented. The plaintiff presented no evidence to establish that Ms. Sanders incurred a physical injury or that she was conscious enough to know that the incident even occurred. There was no evidence of any bleeding, discharge, bruising, cuts, scratches or scraping to the skin of Ms. Sanders and no evidence of any sexual touching or penetration. Indeed, nothing was presented to establish that she was harmed or injured by the incident.
. The Mississippi Supreme Court has held that "unless it is clear to this Court that the verdict is contrary to the overwhelming weight of the credible testimony, this Court will not set aside a jury verdict." Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 618 ( ) (Miss. 2001). The weight of the evidence is clearly not overwhelmingly contrary to the jury's verdict. Keeping in mind all of the evidence presented, the jury's verdict does not rise to the level that would shock one's conscience. In fact, as stated above, there is substantial credible evidence in the record that supports the jury's verdict. The jury considered this evidence, weighed it, and found in favor of Windsor Place. Questions of negligence are to be determined by the jury. Upchurch ex rel Upchurch v. Rotenberry, 761 So.2d 199, 204 ( ) (Miss. 2000). The jury, in such cases, sits as the trier of fact responsible for determining issues of credibility and what weight and worth to assign to the various aspects of the proof submitted. Scott Addison Constr., Inc. v. Lauderdale County School Sys., 789 So.2d 771, 773 ( ) (Miss. 2001).
. Likewise, the trial judge was present throughout the trial, and he considered the evidence, weighed it and determined that there was sufficient evidence to deny the plaintiff's motion for judgment notwithstanding the verdict and for new trial. Therefore, I find that the trial judge did not abuse his discretion in denying a new trial and find that the jury's verdict should be affirmed.
McMILLIN, C.J., AND SOUTHWICK, P.J., JOIN THIS SEPARATE OPINION.
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