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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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