Court of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 1 of 10 A TTORNEY FOR A PPELLANT Andrew A. Crosmer Rubino, Ruman, Crosmer & Polen Dyer, Indiana A TTORNEY S FOR A PPELLEE J OE J ONES , J R

. Shawn C. Swope Cassandra J. Neal Swope Law Offices, LLC Dyer, Indiana
A TTORNEY FOR A PP ELLEE A LLSTATE I NSURANCE C OMPANY Harold G . Ha g berg Ha g berg & Associat es Crown Point, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Marlo Harris , Appellant

- P

laintiff ,

v. 

### Joe Jones, Jr., and Allstate Insurance Company , Appellee s -

Defen dants March 20, 2020 Court of Appeals Ca se No. 19A

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- 1196 Appeal from the Lake Super ior Court The Honorable Bruce D. Parent, Judge Trial Court Cause No. 45D11

- 1406

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- 121

Crone , Judge
.Court of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 2 of 10 

### Case Summary

[1] Marl o Harr is filed a complaint for d amages against Joe J ones , Jr. , and Allstate
Ins urance Company ( collectively “ De fendan ts ” ) following a motor vehicle collision

. A jury returned a verdict in f avor of Harris in the amount of $10,000. The t rial court subsequently en ter ed an o r der assessing attorney ’ s fees against Harris in the amount of $1000 due to her rejection of J ones ’ s qualified settlement offe r . Unsatisfied with th ese result s , Harris now appeals , raising several issue s that revolve aro und whether the trial cour t a bused its d iscretion in instructing the jur y and in excluding and admitting certain evidence

. Fi ndi ng

rev ersible instructional error , we reverse and remand for a new trial on damages only . We also vacate the t rial court ’ s asse ssment of fees against Ha rris

. 

### Facts and Proc edural History

[2] In the early morning hours of N ovember 30, 2013 , Harris was driv ing a vehi cle

own ed by her g randmother on Interstate 80 in Ha mmond whe n she was
in vol ved in a colli sion with Jones

. Jones struc k th e back of Harris ’ s veh icle ,
c ausing minimal damage to Harri s ’ s vehicle

. Ther eafter, Harris filed a

c omplaint for damages a gains t Jone s and her g randmother ’ s in surer, Allstate , alleg ing negligen ce, recklessness, and willful and wanton misconduct a gainst
Jo n es and breach of contr act a gainst Allstate . Specifi cally, H arris alleged that
J o nes negligently and recklessly caused the coll i sion to occur , and that he committed misconduct by driving while intoxicated and impaired , failing to keep a proper lookout , a nd endangerin g the welfar e of others. Harris further

a ll eged that A llstate breached the contract of insurance and was liable for anyCourt of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 3 of 10 d amages caused by Jones as an uni nsured /underinsured motorist

. Harris sought both compensatory and punitive damages.

[3] A ju ry trial began on May 8 , 2019

. Portions from the transcript of the video deposition of Dr. Ilesh K urani w ere read to the jury

. Dr. Kurani testified that her predecessor , Dr. Patel, Harris ’ s t reating physician, saw Harris after the accident a nd di agno sed her with “ acute lumbar disk disease with left radicul opathy [ , ] ” which is a soft tissue injury that “ c[a]me on sudde nly without
any pr ior chronic incidence onset

. ” Tr. V ol. 2 at 152, 1 56, 198

. Dr. Patel referred Harris for an MRI in order to determine the cause of her radicular symptoms

. Reviewi ng Harris ’ s medical records, Dr. Kurani confi rmed that Harris never completed the MR I becau se she “ became claustrophobic, so could not finish the test

. ” Id. at 151. Dr. Kurani stated that an MRI is a diagnost ic

t ool that “ c ould ” have s hown w hether “ there was a dis k in jury ” and/or whether there were “ pre - exis ting degen erative ” spinal issu es. I d

. at 195. During trial , Harris testified that she experien ced lower back pain following the accident that cont inued t o wo rse n , so she went to see Dr. Patel

. Harri s stated that Dr. Patel treated her with pain medication and injections. A lthough Dr

. Pate l orig inally placed certain restriction s upon her return to work , Harris was eventually released by Dr. Patel “ with no r est r ictions ” in February 20 14

. Id

. at 157. Harris a d mitted that while she continued to experience pain, she did not have any med ical t reatment during the four years prior to trial . She stated t hat not a day goes by when she does not have back pain and t hat she a lso often experien ces tingling an d numb ness in her legs.Court of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 4 of 10 [4] A f ter hearing from additional witnesses and cl osing arguments of couns el, t he jury found Jones to be 100% at fault and awarded Har ris compensatory damages in the amount of $1 0,000. The jury awa rded Harris zero puniti ve damages. J on es subse qu ently filed a motion for attorney ’ s fees pursuant to Indiana Code Section 34

- 5 0

- 1

- 6 based upon Harris ’ s rejection o f a pre trial

sett lement offer of $25,000 . The trial court granted the motion and award ed $ 1000 in fe es to Jones. This appeal ensued.


### Dis c ussi on a nd D eci sion The trial court abuse d i ts discretion and committed revers ible
e rror i n g iving a failure to mitigate instruction to the jury
.
[5] Among other things, Harris asserts that the trial court abused it s discretion in
i nstru cting the jury re garding her allege d failure to mit igate damages

. Speci fically, Defe nda nts p roffered a pat tern final jury instruction th at pro vided,

Marlo Harris must use reasona ble care to minimize her dam a ges after she is injured. Mar lo Harris m ay not rec over for any item of d a mage that she could have a voided through the use of
re asonable care. Defenda nts ha ve the burden of proving by th e greater weight of the evidence that Mar lo Harris failed to use
rea s onable care to minimi ze her damages. Do not cons ider failure to minim ize d a mages as f ault. Rather you may consider failure to mi n imize da mages [to] red uce th e amount of damages that Mar lo Harris claims.Court of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 5 of 10 Tr. Vol. 3 at 99. 1 Harris objected and asserted that there was insufficient evidence to support the givi ng of a failure

- to

- miti gate instr uction. Harris ’ s counsel argued that D efendants had presente d ins uffi ci ent evidence of causation, that is, th ey failed to prov e that Harris ’ s post

- injury conduct increased her harm, and if so, by how much. The trial c ourt o verruled th e obj ectio n and perm itted the instru ction to be read to the jury.

[6] W h en review ing a tri al cou rt ’ s decision to give or refuse a tendered instruction, we consider whether: “1) the instruction correctly states the law; 2) the evidence in the r eco r d supports gi ving the i nstruction , and 3) the sub stance of the instructi on is cov ered by other inst ructio ns.” Humphrey v. Tuck , 132 N.E.3d 512,
515 (I nd. Ct. App. 2019) ( citation omitted). “ In determining whether s ufficient evidence exists to suppo rt a n instruction , we will look only to that evidence most favorable to the appellee and any reason able inferenc es to be drawn therefrom

. ” Id. This Court review s a trial c ourt ’ s decision to give or refuse to give an instruction only for an abuse of discr etio n. Id

.

[7] Regard ing f ai lur e to mitigate specifically , ou r s upreme c ourt has explaine d,
[T ] he princ iple of mitig ation of damages addresses conduct by an injured party that aggravates or increases the party ’ s injuries.

.... [F]ailure to mitigate damages is an a ffirmative de fense t hat may reduce the amount of dama ges a plaintiff is entitled to re cover aft er liability has been found. Put simply, a plaintiff in a negligence action has a duty to mitigate his or her post

- inju ry

1 See I ND

. M O DEL C IV IL J URY I NSTRUCTION 935 ( 2019 )

.Court of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 6 of 10 damages, and the amount of damages a pl aintiff is en title d to recover is reduced by thos e da mages which reasona ble care would have pre vented. The d efendant bears the burden to prove that the plaintiff has not used reasonable diligence to mitigate da mages. The defendant ’ s burden includes pro of o f causation, that is , t he defendant must prove th at t he plaintiff ’ s unre asonable post

- injury co nduct has inc reased the plaintiff ’ s harm, and if so, by how much.
Willis v. Westerfield , 839 N.E.2d 1179, 11 87 (Ind. 2006) ( citation s and q uotation marks omit ted)

.

[8] In short , “[t ]he a ffirm ative defense of failure t o mi tigate damages has two eleme nts, and as to both the defendant bears the burden o f proof by a preponderance of the evidence.” Id . at 1188

. “ First, the defendant must prove that the plaintiff faile d to e xercise reasonab le ca re t o mitigate his or her post

inju ry da mages. ” 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 defen d ant ’ s negligent cond uct

. “ It is not enough to establ ish that the plaintiff a cted unre asonably

. ” Id

. The de fendant mus t establish “resulting identifiable quantifiable additional injury.” Id

.

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

cou ld have determine d th at Harris failed t o exercise reasonabl e care to mitiga te h er post

- injury damages , we find a complete lack of evidence on the s econd element , which require d Defe ndants to point to a resulting identifi able quantifiable inj ury
. T he only expert medical t es timon y presented at t r ial was the transcript of the vide o deposition o f Dr. Kurani. In reviewing medicalCourt of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 7 of 10 records from Harr is ’ s former physician, Dr. Patel, Dr. Kurani confirmed that Harris did not complete an MRI that was re comm e nde d by D r. P atel foll owing

t he ac cident. Dr. K ur ani wa s not a sked whether and never suggested that
H arris ’ s failure to obtain an MRI or to seek additional medical care caused her to suffer additional injur y or any identi fiable item of harm not att ributable t o th e a ccident.

[10] D efendan ts 2 argu e that exp e rt testimony was not re quire d to m eet their burden of proof on the second eleme nt , and that the lay jury could simply conclu de based upon the evidence presented that Harris ’s post

- injury conduc t aggravated

or inc reas ed her injuries

. Defendants are correc t that a lthough expert testimony will often be required to establ ish that the plaintiff ’s c onduc t caused additional harm, and the amount of such harm, expert testimony is not always required.
W illis , 839 N.E. 2 d a t 11 88

. Indeed, whether a failur e - to

- mitigate defe nse requires expert medical testimony to e stabl ish causation must be resolved on a

case - by

- case basis. Id

. at 1189

.

[11] A s a general matter, e xpert testimony is required where the question involve s medical facto r s b eyon d the common knowledge of a lay person such that the jury could only indulge in spec ulat io n in making a finding based thereon. I d

. But , “ on medical matters which are within the common experience, observation, or knowledge of [ lay persons] , n o expert testim o ny is r equired to

2 A l though Jones and A llstate file d separate briefs and make separate argu me n ts on appeal , they make simi lar arguments in thi s rega rd , so we need not address the ir argume nts s eparately.Court of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 8 of 10 permi t a conclusio n on causation.” Id

. In other words, i n many case s, medical expert testimony will be necess ary to establish whether separate injuries are attributable to the defendant ’ s negli gence or flow from a plaintiff ’ s post

- injury fa i lur e to follow advice as to treatmen t. Id

. But in other cases, a lay juror can
d etermine that a particular item of harm was caused by a plai ntiff ’ s unreasonable post

- injury disregard of treatment advice. Id

. In making this dete rmination, the trial cour t sh ould consider the nature of the m edical question presented and , in partic ular , whether the matter is within the common experience, observation, or knowledge of lay persons

. Id

.

[12] T he parties agree that Harris ’s alleged inju r ies ( back and radic ular pain /numbne ss ) ar e s u bjective in nature, rather than o bjective , because she perceived the injur ies and reported them to her doctor, but the inju r ies are not ones the doctor could ob serve

. See Martin v. Ramos , 120 N.E. 3d 244, 250 (Ind. Ct. App. 2019) ( expla ining differe nce be t ween subjective and object ive injuries).
W e have held that w here a plain tiff ’s injuries are subject ive in natur e, expert medical testi mony is required to prove c ausation. Topp v. Leff ers , 838 N. E.2d 1027, 1033 (Ind. Ct. A pp. 20 0 5) , trans. d enied ( 2006 ). This same prin cip l e appl i es 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
Har ris suffered increased i d entifiab le quantifiable harm that w as not attributable

t o Jone s ’ s negligence but instead flow ed from Harris ’ s post

- injury conduct.Court of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 9 of 10 [13] Rega rdless , we have a complete lack of an y evidence, expert or otherwise, that additional harm was c ause d by Ha rri s ’s p ost

- injury conduct , much less the amount of such harm

. In oth er wor ds, there wa s no evidence of a separate, discrete, identifiable harm caused by Harris ’ s alleged ly unreasonable post

- injury conduct or how much damage was caused or proxima tely cau se d by this

con duct

. T he only eviden ce before the jury wa s this: Harris fe l t pain af ter the accident , she did not participate in the dia gnostic testing re commended by her doctor , she eventually returned to work, and she did not see k furth er m e dical

treatment aft er Febr u ary 2014 despi te continuing to feel pain

. Absent even a

sc inti lla of evidence that Harris ’ s behavior resulted in an “ identifiable quantifiable additional inju ry, ” a failure

- to

- mitigate instruction was wholly unwarranted

. W e co nclude that the trial cou rt abu sed i t s discre tion in giving such an i ns truction

.

[14] Ou r supr eme court has explained that instructional error is subject to a harmless

- erro r analysis , which provides that an “ erro n eous jury instructi on merit s re versal if it could have forme d a bas i s for the jury ’s verdict

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

. 3 Becau se the jury here issued a general verdict and we cannot disc ern wheth er Harris ’ s

3 In Sim mon s v . Erie Ins urance Exchange , Inc. , 891 N.E.2d 105 9, 1071 (Ind. Ct. App. 2008) , t his C o urt noted tha t in addit ion to the harmless error stand ard pro vided by Fleetwoo d , our supreme court has s tated that “one seeking a new trial on the basis of an i mprop er jur y instruction must sh ow ‘a reason able pr obability that substantial rights of the complaining party have been adversely affected

. ’ ” El mer Bu chta Tr ucking, Inc. v. Stanley , 744 N.E.2d 939, 944 (Ind. 2001)

. We note that the jury awarded com pensato ry damages to Harris that were s ignificantly below the amount of the qualified settlement offer

. Thi s indicates a reasonabl e probab ility tha t the failure

- to

- m it igate instruction ad versely affected her substantia l rights. Thus, w e conclude that reversal would be warranted here under either sta ndard.Court of Appeals of Indiana | Opinion 19A

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- 1196 | March 20, 2020 Page 10 of 10 damages were red uced due t o her alleged failure to mi tig ate , the erroneous instruction “could have ” formed the basis f or th e co m pens ato ry damages award

. According ly, we reverse and remand for a n ew tr ial on damages only. 4
See , e.g. , Willis , 839 N. E.2d a t 11 90 (reversing and reman ding for new trial on damages due to erroneous failure

- to

- mitigate instr uction ); Humphrey , 132 N.E.3d a t 517 ( same ); Buhring v. Ta volett i , 905 N.E.2d 105 9, 1 068 ( I nd . Ct. App. 2009) ( same ) . W e also vacate the trial court ’ s order assessing $1000 in attorney ’ s fees , expenses , and costs against Harris and in fa vor of Jon es bec ause the d amages award underly ing tha t assessment has been reversed

. 5

[15] Reversed and remanded.

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

4 Harris a lso a ssert s that the trial court committed reversible error in the adm ission and exclu sion of certain
ev id ence during trial

. B ecause we reverse , and because t hose evidentiary issues m ay or may not arise on remand, we decline to address them. Indeed, a review of Harris ’ s specific claims reveal s that each of the trial court ’ s ruling s w as mad e in the spe cifi c tr ial context in which th os e it ems of evidence were of fered, and that context , as well as the parties ’ arguments in favor of and opposing admission or exclusio n, could surely change upon rem and. A cardinal principle of the judici al functi on is that courts sho uld not issue advisor y opinions but instead should d ecide cases only on the specific facts of the particular case a nd not on hypothetical situations. Snyder v. King , 958 N.E.2d 764, 786 (Ind. 2011)

. 5 Indiana Code Section 34

- 50

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- 6 provides that at torn e y ’ s fees , expenses , and c osts of n ot more than $1000 may be awarded to the offer or of a qualified settlement offer ( “ QSO ” ) if the recipient of the QSO receives a f inal judgment that is less favorable than the terms of the QSO . As noted ea rlier, Harris rec eive d a QSO of $25 ,000 an d a final judgment of only $10, 000

. J ones ’ s A pp. Vol. 2 at 2, 6. However , that final judgment has been reversed

.