When reviewing the appropriateness of an instruction, reviewing courts consider whether (1) the instruction correctly states the law, (2) the instruction is supported by evidence in the record, and (3) the instruction’s substance is covered by another instruction. The first consideration is a legal question reviewed without giving any deference to the trial court, whereas the second and third considerations are reviewed for an abuse of discretion. To prove a failure to mitigate, a defendant must prove by a preponderance of the evidence that (1) the plaintiff did not exercise reasonable care in mitigating post-injury damages, and (2) the failure to exercise reasonable care caused the plaintiff to suffer harm not attributable to the defendant’s negligence. When a plaintiff fails to follow medical advice aggravating his injuries, a defendant must show such failure caused discrete, identifiable harm arising from that failure and not attributable to the defendant. Courts consider whether the defendant has produced enough evidence of causation to warrant an instruction. Expert opinion is often, but not always, required, with courts considering whether the medical issue is within the common experience, observation, or knowledge of a layman.

The Court of Appeals reversed the trial court and remanded for a new trial finding the evidence insufficient to support a failure to mitigate jury instruction. The Indiana Supreme Court, however, disagreed, noting under Indiana law to warrant the giving of an instruction a defending party need only show some evidence—a “scintilla”—of each element of the underlying claim or defense. Here, the trucking crash plaintiff Humphrey conceded the existence of evidence showing he had failed to exercise reasonable care to mitigate his post-injury damages; the only question, therefore, was whether there was some evidence that his conduct caused him to suffer harm beyond that attributable to the defendants. As to the second element of failure to mitigate, the Indiana Supreme Court noted that the issue is not only whether Humphrey’s failure to follow his doctor’s orders increased his harm, but also whether it prolonged the suffering he attributed to the defendants’ negligence in any discrete, measurable way, without the defendants having to put forth a specific numerical value as to the plaintiff’s increased or prolonged harm in showing “quantifiable” harm. Defendants argued that Humphrey’s failure to mitigate his damages either aggravated his injuries or prolonged them.

In reviewing the record, the Indiana Supreme Court noted there was evidence that Humphrey did not initially take prescribed medicine for his hormonal imbalance, the medication helped when he eventually took it, he then stopped taking it because of side effects but did not immediately follow up as directed to find an alternative medicine for his hormonal imbalance, and that despite vision problems, he did not fill an eyeglass prescription. Based on this evidence, the Indiana Supreme Court concluded that a reasonable jury could conclude that Humphrey’s continuing symptoms constituted identifiable harm attributable to his failure and not the defendants’ negligence. The Court vacated the Court of Appeals’ opinion and affirmed the trial court’s judgment finding no abuse of discretion in the trial court giving a failure to mitigate instruction.

You can read the full opinion here.

The plaintiff thereafter sought and received medical treatment from numerous providers, including an ophthalmologist, optometrist, neurosurgeon, and endocrinologist. During his treatment, an MRI revealed a pre-existing tumor on the plaintiff’s pituitary gland, which was secreting prolactin and causing high prolactin levels. The plaintiff’s neurosurgeon opined that the plaintiff had pituitary apoplexy, which he described as an abrupt sudden event that occurs spontaneously in many cases of large pituitary tumors but which can be associated with trauma. After the plaintiff’s neurosurgeon removed the tumor, the plaintiff’s endocrinologist prescribed a medication, bromocriptine, to help lower his prolactin level. While the plaintiff did not always take the medication as prescribed because he could not afford it and it made him ill, he did take it consistently for a period of at least six months, and as a result, his prolactin levels decreased significantly. His endocrinologist eventually advised him to stop taking the medication altogether. The plaintiff’s optometrist also prescribed eyeglasses, but the plaintiff never got them.

The trucking company argued at trial that the plaintiff failed to mitigate his damages because he did not take the bromocriptine as prescribed and did not get the eyeglasses as prescribed. Failure to mitigate damages is an affirmative defense that can reduce the amount of a plaintiff’s damages when the plaintiff’s conduct aggravates or increases the plaintiff’s injuries. In order to prove a failure to mitigate damages, a defendant must prove (1) the plaintiff failed to exercise reasonable care to mitigate his post-injury damages, and (2) the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligent conduct. A defendant’s burden of proof includes proof of causation, namely, that the plaintiff’s unreasonable post-injury conduct increased the plaintiff’s harm, and if so, by how much.

The trial court instructed the jury on the plaintiff’s alleged failure to mitigate damages, over the plaintiff’s objection. The jury thereafter returned a general verdict in favor of the plaintiff, but only in the amount of $40,000.00. The plaintiff appealed arguing the trial court erred in giving the instruction. When appellate courts review trial court decisions to give or refrain from giving jury instructions, appellate courts consider whether the instruction correctly states the law, whether the evidence supports giving the instruction, and whether the substance of the instruction is covered by other instructions. Here, the plaintiff argued that the trial court erred by giving the failure to mitigate instruction because the trucking company had failed to present sufficient evidence showing that any failure to mitigate damages caused the plaintiff to suffer an identifiable item of harm not attributable to the trucking company’s negligent conduct and failed to prove how much harm or what specific item of harm was caused as a result of the failure to mitigate.

The Court of Appeals agreed with the plaintiff and reversed and remanded the case for a new trial. In reviewing the record and the parties’ arguments, the Court of Appeals found no evidence that the plaintiff’s failure to take his medication exactly as prescribed caused a continuance of his symptoms, exacerbated his symptoms in any way, or otherwise increased his harm, and if so, by how much. The Court also found that the trucking company failed to prove that the plaintiff’s failure to get eyeglasses caused the plaintiff any discrete harm. Since an erroneous jury instruction merits reversal if it could have formed the basis of a jury’s verdict, and because the jury award in this case was a general verdict, the court reversed and remanded for a new trial on damages only.

You can read the full opinion here.