Rear-ended driver wins new damages trial after errant jury instruction

A driver who a jury awarded just $10,000 on her personal injury claims after an intoxicated driver struck her car from behind won a new trial on damages Friday. The Indiana Court of Appeals found an erroneous jury instruction may have led to a verdict that was less than the driver had been offered to settle the case.

In 2013, Marlo Harris’ vehicle was struck from behind on Interstate 80 in Hammond by driver Joe Jones Jr., who was insured by Allstate. She claimed that as a result of the crash, she suffered lingering back pain and tingling in the legs. While she appeared for an MRI, she could not complete the test because she became claustrophobic. She was treated with pain medication but did not seek treatment for four years prior to trial.

After a jury ultimately awarded Harris $10,000, Lake Superior Judge Bruce Parent further granted Allstate’s motion that she pay $1,000 in attorney fees, because the damages award was less than the $25,000 qualified settlement offer that had been extended to Harris pretrial.

But a Court of Appeals panel reversed in Marlo Harris v. Joe Jones, Jr., and Allstate Insurance Company, 19A-CT-1196. The panel found the trial court’s instruction that the jury consider whether Harris failed to mitigate her damages “was wholly unwarranted. We conclude that the trial court abused its discretion in giving such an instruction.”

The panel found that because the jury verdict may have been impacted because of the erroneous instruction, remand for a new trial on damages was warranted.

“We have held that where a plaintiff’s injuries are subjective in nature, expert medical testimony is required to prove causation,” Judge Terry Crone wrote for the panel, citing Topp v. Leffers, 838 N.E.2d 1027, 1033 (Ind. Ct. App. 2005), trans. denied (2006).

“Accordingly, we conclude that expert testimony was necessary in this case to establish whether Harris suffered increased identifiable quantifiable harm that was not attributable to Jones’s negligence but instead flowed from Harris’s post-injury conduct,” Crone wrote.

“Regardless, we have a complete lack of any evidence, expert or otherwise, that additional harm was caused by Harris’s post-injury conduct, much less the amount of such harm. In other words, there was no evidence of a separate, discrete, identifiable harm caused by Harris’s allegedly unreasonable post-injury conduct or how much damage was caused or proximately caused by this conduct. The only evidence before the jury was this: Harris felt pain after the accident, she did not participate in the diagnostic testing recommended by her doctor, she eventually returned to work, and she did not seek further medical treatment after February 2014 despite continuing to feel pain. Absent even a scintilla of evidence that Harris’s behavior resulted in an ‘identifiable quantifiable additional injury,’ a failure-to-mitigate instruction was wholly unwarranted. We conclude that the trial court abused its discretion in giving such an instruction.”

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