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Rehabilitative Care System of America v. Davis3/28/2001
e on the basis of factual insufficiency, the finding of the trier of fact must be so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), rev'd on other grounds, Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000). However, the appellate court cannot substitute its own judgment for that of the trier of fact. It is the province of the jury to pass on the weight and credibility of a witness's testimony. Leibman v. Grand, 981 S.W.2d 426, 429 (Tex. App.-El Paso 1998, no pet.).
In support of its argument, RCSA points to Lee-On's testimony regarding the reliability of the Total Gym machine. Lee-On testified that he never observed a Total Gym machine malfunction and that he did not understand how it could do so. However, Lee-On also confirmed that his written report stated that Davis had "lost control" of the machine during one of his exercises. Lee-On also testified that Davis had been showing improvement in his condition prior to the June 10, 1992 incident, that he was not present in the room when the incident involving Davis occurred, and that he was not exactly sure what did happen to Davis.
Downey's testimony was, basically, that she did not remember what happened that day, but she did acknowledge that she may not have been physically present at the time Davis allegedly had trouble with the Total Gym.
The jury in this case may not have found Lee-On's testimony to have been credible regarding the improbability of the Total Gym malfunctioning. The jury had the opportunity to observe Davis and listen to his version of what happened and to make a judgment as to his credibility. Further, all witnesses testified that Davis's condition was improving, prior to the incident in question, even though Dr. Harris did not see as much improvement as he expected and did testify that Davis was not "out of the woods" yet. Dr. Harris did testify that Davis's condition was worse after the June 10, 1992 incident. This testimony is inconsistent with the suggestion made on the cross- examination of Dr. Harris that there may have been a rotator cuff tear that was not identified at the time of the first MRI.
Reviewing the testimony and evidence presented to the jury in this case, we do not find that its verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. The third contention is overruled.
The judgment of the trial court is affirmed.
Date Submitted: January 18, 2001
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