Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 1 of 10

ATTORNEY FOR APPELLANT

Andrew A. Crosmer

Rubino, Ruman, Crosmer & Polen

Dyer, Indiana

ATTORNEYS FOR APPELLEE JOE 

JONES, JR.

Shawn C. Swope

Cassandra J. Neal

Swope Law Offices, LLC

Dyer, Indiana

ATTORNEY FOR APPELLEE 

ALLSTATE INSURANCE

COMPANY

Harold G. Hagberg

Hagberg & Associates

Crown Point, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Marlo Harris,

Appellant-Plaintiff,

v.

Joe Jones, Jr., and Allstate 

Insurance Company,

Appellees-Defendants

March 20, 2020

Court of Appeals Case No.

19A-CT-1196

Appeal from the Lake Superior 

Court

The Honorable Bruce D. Parent, 

Judge

Trial Court Cause No.

45D11-1406-CT-121

Crone, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020 Page 2 of 10

Case Summary

[1] Marlo Harris filed a complaint for damages against Joe Jones, Jr., and Allstate 

Insurance Company (collectively “Defendants”) following a motor vehicle 

collision. A jury returned a verdict in favor of Harris in the amount of $10,000. 

The trial court subsequently entered an order assessing attorney’s fees against 

Harris in the amount of $1000 due to her rejection of Jones’s qualified 

settlement offer. Unsatisfied with these results, Harris now appeals, raising 

several issues that revolve around whether the trial court abused its discretion in 

instructing the jury and in excluding and admitting certain evidence. Finding 

reversible instructional error, we reverse and remand for a new trial on damages 

only. We also vacate the trial court’s assessment of fees against Harris.

Facts and Procedural History

[2] In the early morning hours of November 30, 2013, Harris was driving a vehicle 

owned by her grandmother on Interstate 80 in Hammond when she was 

involved in a collision with Jones. Jones struck the back of Harris’s vehicle,

causing minimal damage to Harris’s vehicle. Thereafter, Harris filed a 

complaint for damages against Jones and her grandmother’s insurer, Allstate,

alleging negligence, recklessness, and willful and wanton misconduct against

Jones and breach of contract against Allstate. Specifically, Harris alleged that 

Jones negligently and recklessly caused the collision to occur, and that he 

committed misconduct by driving while intoxicated and impaired, failing to 

keep a proper lookout, and endangering the welfare of others. Harris further 

alleged that Allstate breached the contract of insurance and was liable for any 
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damages caused by Jones as an uninsured/underinsured motorist. Harris 

sought both compensatory and punitive damages. 

[3] A jury trial began on May 8, 2019. Portions from the transcript of the video 

deposition of Dr. Ilesh Kurani were read to the jury. Dr. Kurani testified that 

her predecessor, Dr. Patel, Harris’s treating physician, saw Harris after the

accident and diagnosed her with “acute lumbar disk disease with left 

radiculopathy[,]” which is a soft tissue injury that “c[a]me on suddenly without 

any prior chronic incidence onset.” Tr. Vol. 2 at 152, 156, 198. Dr. Patel 

referred Harris for an MRI in order to determine the cause of her radicular

symptoms. Reviewing Harris’s medical records, Dr. Kurani confirmed that 

Harris never completed the MRI because she “became claustrophobic, so could 

not finish the test.” Id. at 151. Dr. Kurani stated that an MRI is a diagnostic

tool that “could” have shown whether “there was a disk injury” and/or 

whether there were “pre-existing degenerative” spinal issues. Id. at 195. 

During trial, Harris testified that she experienced lower back pain following the 

accident that continued to worsen, so she went to see Dr. Patel. Harris stated

that Dr. Patel treated her with pain medication and injections. Although Dr. 

Patel originally placed certain restrictions upon her return to work, Harris was 

eventually released by Dr. Patel “with no restrictions” in February 2014. Id. at 

157. Harris admitted that while she continued to experience pain, she did not 

have any medical treatment during the four years prior to trial. She stated that 

not a day goes by when she does not have back pain and that she also often 

experiences tingling and numbness in her legs.
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[4] After hearing from additional witnesses and closing arguments of counsel, the 

jury found Jones to be 100% at fault and awarded Harris compensatory 

damages in the amount of $10,000. The jury awarded Harris zero punitive 

damages. Jones subsequently filed a motion for attorney’s fees pursuant to 

Indiana Code Section 34-50-1-6 based upon Harris’s rejection of a pretrial 

settlement offer of $25,000. The trial court granted the motion and awarded 

$1000 in fees to Jones. This appeal ensued.

Discussion and Decision

The trial court abused its discretion and committed reversible 

error in giving a failure to mitigate instruction to the jury.

[5] Among other things, Harris asserts that the trial court abused its discretion in 

instructing the jury regarding her alleged failure to mitigate damages. 

Specifically, Defendants proffered a pattern final jury instruction that provided,

Marlo Harris must use reasonable care to minimize her damages 

after she is injured. Marlo Harris may not recover for any item of 

damage that she could have avoided through the use of 

reasonable care. Defendants have the burden of proving by the 

greater weight of the evidence that Marlo Harris failed to use 

reasonable care to minimize her damages. Do not consider

failure to minimize damages as fault. Rather you may consider 

failure to minimize damages [to] reduce the amount of damages 

that Marlo Harris claims.
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Tr. Vol. 3 at 99.1

 Harris objected and asserted that there was insufficient 

evidence to support the giving of a failure-to-mitigate instruction. Harris’s

counsel argued that Defendants had presented insufficient evidence of 

causation, that is, they failed to prove that Harris’s post-injury conduct 

increased her harm, and if so, by how much. The trial court overruled the 

objection and permitted the instruction to be read to the jury.

[6] When reviewing a trial court’s decision to give or refuse a tendered instruction, 

we consider whether: “1) the instruction correctly states the law; 2) the evidence 

in the record supports giving the instruction, and 3) the substance of the 

instruction is covered by other instructions.” Humphrey v. Tuck, 132 N.E.3d 512, 

515 (Ind. Ct. App. 2019) (citation omitted). “In determining whether sufficient 

evidence exists to support an instruction, we will look only to that evidence

most favorable to the appellee and any reasonable inferences to be drawn 

therefrom.” Id. This Court reviews a trial court’s decision to give or refuse to 

give an instruction only for an abuse of discretion. Id.

[7] Regarding failure to mitigate specifically, our supreme court has explained,

[T]he principle of mitigation of damages addresses conduct by an 

injured party that aggravates or increases the party’s injuries. ....

[F]ailure to mitigate damages is an affirmative defense that may 

reduce the amount of damages a plaintiff is entitled to recover 

after liability has been found. Put simply, a plaintiff in a 

negligence action has a duty to mitigate his or her post-injury 

1 See IND. MODEL CIVIL JURY INSTRUCTION 935 (2019).
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damages, and the amount of damages a plaintiff is entitled to 

recover is reduced by those damages which reasonable care 

would have prevented. The defendant bears the burden to prove 

that the plaintiff has not used reasonable diligence to mitigate 

damages. The defendant’s burden includes proof of causation, 

that is, the defendant must prove that the plaintiff’s unreasonable 

post-injury conduct has increased the plaintiff’s harm, and if so, 

by how much.

Willis v. Westerfield, 839 N.E.2d 1179, 1187 (Ind. 2006) (citations and quotation 

marks omitted).

[8] In short, “[t]he affirmative defense of failure to mitigate damages has two 

elements, and as to both the defendant bears the burden of proof by a 

preponderance of the evidence.” Id. at 1188. “First, the defendant must prove 

that the plaintiff failed to exercise reasonable care to mitigate his or her postinjury damages.” Id. Next, “the defendant must prove that the plaintiff’s failure 

to exercise reasonable care caused the plaintiff to suffer an identifiable item of 

harm not attributable to the defendant’s negligent conduct. “It is not enough to 

establish that the plaintiff acted unreasonably.” Id. The defendant must

establish “resulting identifiable quantifiable additional injury.” Id.

[9] Here, even assuming that there was sufficient evidence from which the jury 

could have determined that Harris failed to exercise reasonable care to mitigate 

her post-injury damages, we find a complete lack of evidence on the second 

element, which required Defendants to point to a resulting identifiable 

quantifiable injury. The only expert medical testimony presented at trial was

the transcript of the video deposition of Dr. Kurani. In reviewing medical 
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records from Harris’s former physician, Dr. Patel, Dr. Kurani confirmed that 

Harris did not complete an MRI that was recommended by Dr. Patel following 

the accident. Dr. Kurani was not asked whether and never suggested that 

Harris’s failure to obtain an MRI or to seek additional medical care caused her 

to suffer additional injury or any identifiable item of harm not attributable to 

the accident.

[10] Defendants2 argue that expert testimony was not required to meet their burden 

of proof on the second element, and that the lay jury could simply conclude 

based upon the evidence presented that Harris’s post-injury conduct aggravated 

or increased her injuries. Defendants are correct that although expert testimony 

will often be required to establish that the plaintiff’s conduct caused additional

harm, and the amount of such harm, expert testimony is not always required. 

Willis, 839 N.E.2d at 1188. Indeed, whether a failure-to-mitigate defense 

requires expert medical testimony to establish causation must be resolved on a 

case-by-case basis. Id. at 1189.

[11] As a general matter, expert testimony is required where the question involves 

medical factors beyond the common knowledge of a layperson such that the 

jury could only indulge in speculation in making a finding based thereon. Id.

But, “on medical matters which are within the common experience, 

observation, or knowledge of [laypersons], no expert testimony is required to

2 Although Jones and Allstate filed separate briefs and make separate arguments on appeal, they make

similar arguments in this regard, so we need not address their arguments separately.
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permit a conclusion on causation.” Id. In other words, in many cases, medical 

expert testimony will be necessary to establish whether separate injuries are 

attributable to the defendant’s negligence or flow from a plaintiff’s post-injury 

failure to follow advice as to treatment. Id. But in other cases, a lay juror can 

determine that a particular item of harm was caused by a plaintiff’s 

unreasonable post-injury disregard of treatment advice. Id. In making this 

determination, the trial court should consider the nature of the medical question 

presented and, in particular, whether the matter is within the common 

experience, observation, or knowledge of laypersons. Id.

[12] The parties agree that Harris’s alleged injuries (back and radicular 

pain/numbness) are subjective in nature, rather than objective, because she 

perceived the injuries and reported them to her doctor, but the injuries are not 

ones the doctor could observe. See Martin v. Ramos, 120 N.E.3d 244, 250 (Ind. 

Ct. App. 2019) (explaining difference between subjective and objective injuries). 

We have held that where a plaintiff’s injuries are subjective in nature, expert 

medical testimony is required to prove causation. Topp v. Leffers, 838 N.E.2d 

1027, 1033 (Ind. Ct. App. 2005), trans. denied (2006). This same principle

applies whether we are talking about causation in failure to mitigate or

causation in the plaintiff’s case. Willis, 839 N.E.2d at 1188. 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.
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[13] 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.

[14] Our supreme court has explained that instructional error is subject to a 

harmless-error analysis, which provides that an “erroneous jury instruction 

merits reversal if it could have formed a basis for the jury’s verdict.” Fleetwood 

Enter., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492, 495 (Ind. 2001).

3 Because 

the jury here issued a general verdict and we cannot discern whether Harris’s 

3 In Simmons v. Erie Insurance Exchange, Inc., 891 N.E.2d 1059, 1071 (Ind. Ct. App. 2008), this Court noted 

that in addition to the harmless error standard provided by Fleetwood, our supreme court has stated that “one 

seeking a new trial on the basis of an improper jury instruction must show ‘a reasonable probability that 

substantial rights of the complaining party have been adversely affected.’” Elmer Buchta Trucking, Inc. v. 

Stanley, 744 N.E.2d 939, 944 (Ind. 2001). We note that the jury awarded compensatory damages to Harris 

that were significantly below the amount of the qualified settlement offer. This indicates a reasonable

probability that the failure-to-mitigate instruction adversely affected her substantial rights. Thus, we conclude 

that reversal would be warranted here under either standard.
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damages were reduced due to her alleged failure to mitigate, the erroneous

instruction “could have” formed the basis for the compensatory damages 

award. Accordingly, we reverse and remand for a new trial on damages only.4

 

See, e.g., Willis, 839 N.E.2d at 1190 (reversing and remanding for new trial on 

damages due to erroneous failure-to-mitigate instruction); Humphrey, 132 

N.E.3d at 517 (same); Buhring v. Tavoletti, 905 N.E.2d 1059, 1068 (Ind. Ct. App. 

2009) (same). We also vacate the trial court’s order assessing $1000 in 

attorney’s fees, expenses, and costs against Harris and in favor of Jones because 

the damages award underlying that assessment has been reversed.

5

[15] Reversed and remanded.

May, J., and Pyle, J., concur.

4 Harris also asserts that the trial court committed reversible error in the admission and exclusion of certain 

evidence during trial. Because we reverse, and because those evidentiary issues may or may not arise on 

remand, we decline to address them. Indeed, a review of Harris’s specific claims reveals that each of the trial 

court’s rulings was made in the specific trial context in which those items of evidence were offered, and that 

context, as well as the parties’ arguments in favor of and opposing admission or exclusion, could surely

change upon remand. A cardinal principle of the judicial function is that courts should not issue advisory 

opinions but instead should decide cases only on the specific facts of the particular case and not on 

hypothetical situations. Snyder v. King, 958 N.E.2d 764, 786 (Ind. 2011).

5 Indiana Code Section 34-50-1-6 provides that attorney’s fees, expenses, and costs of not more than $1000

may be awarded to the offeror of a qualified settlement offer (“QSO”) if the recipient of the QSO receives a 

final judgment that is less favorable than the terms of the QSO. As noted earlier, Harris received a QSO of 

$25,000 and a final judgment of only $10,000. Jones’s App. Vol. 2 at 2, 6. However, that final judgment has

been reversed.