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.

Under Indiana’s Comparative Fault Act, which follows a modified comparative fault approach, a personal injury claimant is barred from recovery if the claimant’s fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages. Ind. Code § 34-51-2-6. In other words, if the fault of the claimant is greater than fifty percent (50%) of the total fault of all persons involved in the incident giving rise to the injury or death, the jury has to return a verdict in favor of the defendant or defendants. Ind. Code §§ 34-51-2-7, 34-51-2-8. If the plaintiff’s fault is not greater than fifty percent (50%) of the total fault of all persons involved in the incident giving rise to the injury or death, the jury has to return a verdict in favor of the plaintiff. Id.

Indiana’s Comparative Fault Act provides that a court shall instruct a jury to determine its verdict taking into account the percentage of fault of the claimant/plaintiff, of the defendant/defendants, and of any person who is a nonparty. Id. The Act further provides that the trial court shall provide the jury with forms of verdicts that require only the disclosure of the percentage of fault of each party and nonparty and the amount of the verdict against each defendant. Ind. Code § 34-51-2-11.

Here, the trial court provided four (4) jury verdict forms, three (3) of which were referenced by the court in one of the court’s final jury instructions outlining the procedure the jury was to use to determine fault and damages in accordance with Indiana’s Comparative Fault Act. One jury verdict form, “Verdict Form D,” however, was a general instruction that read, “We, the jury, decide in favor of the Defendant, and against the Plaintiff.” The trial court did not provide any instructions to the jury on this general instruction, but instead left it to the parties to address it in the parties’ closing arguments. After deliberations, the jury returned this verdict in favor of the defendant using “Verdict Form D,” and the trial court entered judgment on the verdict in favor of the defendant.

The plaintiff appealed the verdict arguing the trial court erred by giving the general instruction, “Verdict Form D,” which did not require the jury to determine and apportion the percentage of fault of the parties and any nonparties in its verdict. Under Indiana law, in evaluating the appropriateness of a jury instruction, appellate courts in Indiana consider whether the instruction correctly states the law, whether there is evidence in the record supporting the instruction, and whether the substance of the instruction is covered by other instructions. Parties seeking a new trial based upon an improper jury instruction must show a reasonable probability that the party’s substantial rights have been adversely affected, and an erroneous instruction will warrant reversal only if it could have formed the basis of a jury’s verdict.

The Indiana Court of Appeals found that the trial court should have either provided the general instruction with written instructions, or not have given the instruction at all. Since the trial court left it up to the parties to discuss the general instruction during closing arguments, the Court of Appeals believed undue influence was placed on a single instruction. However, because the defendant had put forth some evidence of the plaintiff’s potential fault with regards to the collision and evidence that the plaintiff had pre-existing injuries, the Court held that any error in the giving of the general jury instruction was harmless, as the jury apparently found that the plaintiff had simply failed to meet her burden of proving up her injuries were related to the car accident as opposed to a prior slip and fall. Finding that the trial court failed to properly instruct the jury but that the plaintiff’s substantial rights were not adversely affected, the Court of Appeals found for the defendant and affirmed the trial court’s judgment.

You can read the full opinion here.