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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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