ILNews

Lack of surgery doesn't support jury instruction

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals reversed a jury award and remanded for a new trial after ruling there was insufficient evidence to support an affirmative defense of a failure to mitigate damages instruction to the jury because a plaintiff failed to have surgery.

In Elwood and Lila Simmons v. Erie Insurance Exchange, No. 32A04-0710-CV-552, the couple appealed a judgment awarding them each $10,000 following an automobile accident involving Elwood and another driver, who was at fault. They filed a complaint seeking underinsured motorist insurance benefits from their insurer, Erie Insurance. Elwood sought compensation for damages suffered from the accident resulting in plantar fascitis, which caused pain in his right foot and made him develop a learned gait to avoid putting pressure on certain parts of his foot.

Elwood saw several doctors and was given treatment and physical therapy, but surgery was never suggested by any of the doctors.

At trial, Erie tendered a proposed jury instruction on the affirmative defense of failure to mitigate damages, which the trial court allowed. The jury awarded $10,000 each to the couple but granted Erie's motion that they weren't entitled to any payment from Erie because they had been paid previously by the other motorist's insurance.

Erie argued Elwood failed to mitigate damages by not undergoing surgery to treat his plantar fascitis, by developing a learned gait, and his alleged failure to regularly use medications and orthotics.

The Court of Appeals noted in the opinion that the "duty of one injured because of another's fault to submit to invasive treatment has caused courts some trouble" and Indiana hasn't addressed whether a plaintiff has to submit to surgery in nearly 100 years. The appellate court examined previous Indiana caselaw on this matter, as well as rulings from other states to conclude whether a plaintiff has a duty to submit to surgery requires a "reasonable person" analysis, wrote Judge Margret Robb.

Based on the facts that no doctor recommended surgery, his doctors prescribed other treatments, and Erie's failure to introduce evidence regarding the risks, benefits, costs, or inconveniences of the surgery, the Court of Appeals concluded Elwood's failure to undergo surgery is insufficient to support an instruction on failure to mitigate damages.

The court also found his learned gait as a result of the plantar fascitis and his alleged failure to regularly use his medications and orthotics don't support the trial court's instruction on failure to mitigate damages, wrote Judge Robb.

The issue of mitigation of damages was emphasized for the jury, and the likelihood the matter was discussed and impacted the jury's verdict is significant and not a harmless error, wrote the judge, so the appellate court remanded for a new trial.
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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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