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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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