* This order and judgment is not binding precedent, e xcept under the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 judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### FEB 7 2000 

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

DEBRA L. CHIDESTER,

Plaintiff-Appellee,

v. WAL-MART STORES, INC., a foreign corporation,

Defendant-Appellant. No. 99-6123 (D.C. No. 98-CIV-425-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. SeeFed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This appeal is taken from the district court’s deni al of defendant’s motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50, which we review-2-

de novo. See Kinser v. Gehl Co. , 184 F.3d 1259, 1267 (10th Cir. 1999), petition for cert. filed , 68 U.S.L.W. 3401 (U.S. Dec. 8, 1999) (No. 99-10). “We will reverse such a ruling only if the evidence points b ut one way and is susceptible to no reasonable inferences supporting the party opposing the motion.” Id. (further quotation omitted). We do not weigh the e vidence, pass on witness credibility, or substitute our judgment for that of the jury. In addition, we construe all the evidence and inferences therefrom in the light most favorable to plaintiff. See id. Plaintiff brought suit against defendant for injuri es suffered as the result of her slipping in a puddle of water in front of an ic e machine at defendant’s store. She reported the incident to a store manager, who n oted in his report that plaintiff had reported her foot slipped, but she caught herse lf, and, twisting her back to keep from falling, pulled a muscle in her lower back. See Appellant’s App. at 442. She was unable to see her primary physician until the following Monday, when she reported that although she caught herself before falling, “her back began to hurt around the scapulas and lower back an d [she was] having some numbness and tingling into her hands.” See id. at 398. Conservative treatment, including an epidermal ster oid injection and physical therapy, see id. at 408-17, failed to provide relief, as plaintiff “continued to have neck, left-sided shoulder and medial scapul ar pain, as well as pain into1 This same employee admitted at her deposition, take n two and one-half

years after the incident, that she was unable to de scribe plaintiff and did not know if plaintiff was black or white, heavy set or thin. See id. at 45. -3- the left arm . . . [with] numbness and tingling int o her left arm, aggravated by use of the arm.” Id. at 418. Ultimately, she underwent a single level disk resection and fusion about ten months after the incident. See id. at 421-24. Follow-up reports reflected nearly complete relief of headach e and arm pain, with some residual stiffness and tightness in her upper back muscles. See id. at 425-31. Defendant contended that plaintiff had given incons istent descriptions of the incident to the store manager and various docto rs, that plaintiff had told one of defendant’s store employees 1 after the slip that she was fine, and that in any event, the surgery was necessitated by plaintiff’s degenerative bone disease and would have been required irrespective of the incide nt at Wal-Mart. Here, the jury found plaintiff’s evidence more cred ible than defendant’s. We have reviewed the evidence under the same standard as the district court, i.e., in the light most favorable to the nonmoving party, and determined that there is “evidence upon which the jury could have properly r elied in returning a verdict for the nonmoving party.” Klein v. Grynberg , 44 F.3d 1497, 1503 (10th Cir. 1995). The jury has the exclusive function of appr aising credibility, drawing inferences from established facts, resolving eviden ce conflicts and reaching ultimate factual conclusions, and our standard of r eview is quite deferential to the-4-

jury’s verdict. See Knowlton v. Teltrust Phones, Inc. , 189 F.3d 1177, 1183-84 (10th Cir. 1999). Our review of the record persuades us that the district court correctly denied defendant’s Rule 50 motion. Accordingly, th e judgment of the district court is AFFIRMED.

Entered for the Court

John C. Porfilio Senior Circuit Judge