                                                                                  FILED
                                                                              Sep 30 2019, 8:57 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
      Michael W. Phelps                                          Michael B. Langford
      Phelps Legal Group                                         R. Jay Taylor, Jr.
      Bloomington, Indiana                                       Scopelitis, Garvin, Light, Hanson
                                                                 & Feary, P.C.
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Patrick Humphrey,                                          September 30, 2019
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 19A-CT-721
              v.                                                 Appeal from the Jackson Superior
                                                                 Court
      Brian Tuck and U.S. Xpress,                                The Honorable Amy Marie Travis,
      Inc.,                                                      Judge
      Appellees-Defendants.                                      Trial Court Cause No.
                                                                 36D01-1604-CT-22



      Najam, Judge.


                                        Statement of the Case
[1]   Patrick Humphrey filed a complaint against Brian Tuck and U.S. Xpress, Inc.

      (collectively “U.S. Xpress”) alleging their negligence in causing a vehicular

      collision. A jury found in favor of Humphrey and awarded him $40,000 in

      damages. Humphrey appeals and presents a single issue for our review,
      Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019                           Page 1 of 10
      namely, whether the trial court erred when it instructed the jury on his alleged

      failure to mitigate his damages.


[2]   We reverse and remand for a new trial.


                                  Facts and Procedural History
[3]   On February 7, 2016, Humphrey was driving on Interstate 65 in Jackson

      County when the trailer of a tractor-trailer being driven by Tuck, a U.S. Xpress

      employee, struck Humphrey’s vehicle. Tuck did not realize that the collision

      had occurred, and he kept driving. Humphrey hit his head on something inside

      the car, but he kept driving. Humphrey was eventually able to get Tuck’s

      attention, and both drivers pulled over to discuss the collision. A police officer

      arrived and talked to both drivers. Humphrey told the officer that he did not

      need medical attention, and Humphrey proceeded to Cedar Rapids, Iowa,

      where he was attending orientation for a new job. Humphrey’s car was

      drivable despite cracks in the windshield near the “‘A’ pillar” where the impact

      with the trailer had occurred. Tr. Vol. 2 at 34. 1


[4]   Once at his hotel in Cedar Rapids, Humphrey noticed a problem with his left

      eye, and he removed a sliver of glass from that eye. The next day, Humphrey

      experienced changes in his vision, and he described it as “like looking through a




      1
        We note that Volume 1 of the transcript is also labeled “Volume 2,” and Volume 2 is also labeled “Volume
      3.” Due to this mislabeling, the parties use different volume numbers to refer to the same volume of
      transcript. There are two volumes of transcript, and we refer to them as Volume 1 and Volume 2. There is
      no Volume 3.

      Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019                         Page 2 of 10
      piece of cheesecloth.” Id. at 31. At that point, Humphrey went to a local

      hospital for medical treatment, and he was referred to an ophthalmologist. The

      ophthalmologist recommended that Humphrey get an MRI of his brain, which

      revealed a tumor on his pituitary gland. 2 The ophthalmologist told Humphrey

      that if he did not undergo surgery to remove the tumor, he might go blind.


[5]   Humphrey took a bus back to his home in Atlanta, and, on February 24, he

      consulted with Dr. John Vender, a neurosurgeon. Humphrey told Dr. Vender

      that he had been having headaches over the “past month” and that his vision in

      both eyes was deteriorating. Tr. Vol. 1 at 146. Humphrey did not tell Dr.

      Vender about the February 7 collision with Tuck. Dr. Vender assessed

      Humphrey’s tumor and found that it was “secreting prolactin,” a hormone,

      which caused his prolactin levels to be “very high.” Id. at 147-48. Dr. Vender

      explained that Humphrey had “pituitary apoplexy,” which is “an abrupt

      sudden event that occurs spontaneously in many cases in pituitary tumors,

      particularly larger ones.” Id. at 148. Dr. Vender explained that “there are some

      cases [of apoplexy] associated with trauma.” Id.


[6]   Dr. Vender performed surgery to remove the tumor two days later, on February

      26. Thereafter, Humphrey followed up with Dr. Vender, and Humphrey also

      consulted with Dr. Maximillian Stachura, an endocrinologist. Dr. Stachura

      explained the impact of Humphrey’s high prolactin level (1,000



      2
        At the ensuing jury trial, a treating doctor explained that Humphrey’s pituitary tumor was a pre-existing
      condition at the time of the collision.

      Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019                             Page 3 of 10
      nanograms/millileter) on Humphrey’s testosterone level, which was low. Dr.

      Stachura decided to try to lower the prolactin level with a medication called

      bromocriptine, which Dr. Stachura prescribed for Humphrey in March. When

      Humphrey followed up with Dr. Stachura in June, his prolactin level had

      dropped to 460 ng/mL, and in November, his prolactin level was 431 ng/mL.

      Humphrey was not consistently taking the bromocriptine as prescribed, both

      because he could not afford it and because it was causing him to be ill.

      Humphrey asked Dr. Stachura whether he could prescribe a different

      medication, and, during a telephone consultation on January 31, 2017, Dr.

      Stachura advised Humphrey to stop taking the bromocriptine.


[7]   As a result of his low testosterone levels, Humphrey experienced a low libido,

      lethargy, and weight gain. At some point, Dr. Stachura prescribed testosterone

      injections for Humphrey. Humphrey’s symptoms improved significantly with

      that treatment. Humphrey also reported some vision problems, and an

      optometrist gave him a prescription for eyeglasses, but Humphrey never got the

      eyeglasses.


[8]   Humphrey filed a complaint against Tuck and U.S. Xpress on April 15, 2016,

      alleging that their negligence caused him to sustain personal injuries. At trial,

      U.S. Xpress argued that Humphrey had failed to mitigate his damages because

      he had not taken the bromocriptine as prescribed by his physicians and because

      he had never gotten eyeglasses that had been prescribed for him. U.S. Xpress

      proffered an instruction on a plaintiff’s duty to mitigate damages, which the



      Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019      Page 4 of 10
       trial court gave over Humphrey’s objection. The jury found in favor of

       Humphrey and awarded him $40,000 in damages. This appeal ensued.


                                       Discussion and Decision
[9]    Humphrey contends that the trial court erred when it instructed the jury as

       follows:


               A plaintiff must use reasonable care to minimize his damages
               after he is injured. The Plaintiff may not recover for any item of
               damage that he could have avoided through the use of reasonable
               care.

               The Defendant has the burden of proving by the greater weight of
               the evidence that the plaintiff failed to use reasonable care to
               minimize his 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 the plaintiff claims.


       Appellant’s App. Vol. 2 at 13.


[10]   When we review 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.” Simmons v. Erie Ins. Exchange,

       891 N.E.2d 1059, 1064 (Ind. Ct. App. 2008) (quoting Hoosier Ins. Co. v. N.S.

       Trucking Supplies, Inc., 684 N.E.2d 1164, 1173 (Ind. Ct. App. 1997)). 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
       Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019    Page 5 of 10
       inferences to be drawn therefrom. Id. We review a trial court’s decision to give

       or refuse to give an instruction for an abuse of discretion. Id.


[11]   As our Supreme Court has explained,


               “the principle of mitigation of damages addresses conduct by an
               injured party that aggravates or increases the party’s injuries.”
               Deible v. Poole, 691 N.E.2d 1313, 1315 (Ind. Ct. App. 1998),
               (citations omitted), aff’d, 702 N.E.2d 1076, 1076 (Ind. 1998). . . .
               [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. Id. Put simply, a plaintiff in a
               negligence action has a duty to mitigate his or her post-injury
               damages, and the amount of damages a plaintiff is entitled to
               recover is reduced by those damages which reasonable care
               would have prevented. Id. The defendant bears the burden to
               prove that the plaintiff has not used reasonable diligence to
               mitigate damages. Deible, 691 N.E.2d at 1315 (quoting Colonial
               Discount Corp. v. Berkhardt, 435 N.E.2d 65, 67 (Ind. Ct. App.
               1982)). 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).


[12]   In sum, “[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 post-

       injury damages. Id. Second, the defendant must prove that the plaintiff’s



       Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019       Page 6 of 10
       failure to exercise reasonable care caused the plaintiff to suffer an identifiable

       item of harm not attributable to the defendant’s negligent conduct.” Id.


[13]   Here, Humphrey concedes that the first element was met in that “there was

       evidence that would create a question of fact for the jury to determine whether

       or not Humphrey exercised reasonable care to mitigate his post-injury

       damages.” Appellant’s Br. at 9. Humphrey asserts, however, that U.S. Xpress

       did not present evidence sufficient to satisfy the second element, namely, that

       Humphrey’s failure to mitigate his damages caused him to “suffer an

       identifiable item of harm not attributable to [U.S. Xpress’] negligent conduct,

       and if so, how much harm or what specific item of harm.” Id.


[14]   U.S. Xpress maintains that the evidence shows that the “discrete, identifiable

       harm was the continuance of symptoms relating to the hormonal imbalance

       resulting from Humphrey’s failure to take the medication his doctor prescribed,

       as well as the persistence of his vision problems attributable to his failure to

       obtain prescription eyeglasses as he was instructed to do.” Appellee’s Br. at 10.

       In support of that contention, U.S. Xpress states that Humphrey had been

       “prescribed medication on June 2, 2016 to correct [his] hormonal imbalance”

       but that he “did not take the prescribed medication until Dr. Stachura

       encouraged him to do so . . . on November 2, 2016.” Id. at 12. U.S. Xpress

       also points to “[t]he same pattern of treatment avoidance . . . in connection with

       Humphrey’s alleged vision issues.” Id.




       Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019      Page 7 of 10
[15]   U.S. Xpress misstates and mischaracterizes the evidence. Humphrey was first

       prescribed bromocriptine in March 2016 and, while he did not take it for some

       period of time thereafter as prescribed, the undisputed evidence shows that he

       did take it for a significant period of time and that his prolactin level decreased

       from 1,000 ng/mL shortly after his diagnosis to 460 ng/mL in June 2016, and it

       decreased again to 431 ng/mL in November 2016. Dr. Stachura testified that

       the fact that his prolactin level decreased by that much indicated that he had

       been taking the bromocriptine. Tr. Vol. 1 at 218. While there was some

       confusion regarding the date of the prescription and whether Humphrey was

       taking the medication as prescribed, the undisputed evidence shows that he was

       taking it consistently during at least six months in 2016, and his prolactin levels

       had decreased significantly. Further, after Humphrey reported side effects from

       the bromocriptine, Dr. Stachura advised him to stop taking it.


[16]   In any event, U.S. Xpress does not direct us to any evidence that Humphrey’s

       failure to follow his doctors’ orders caused him to suffer a “continuance of

       symptoms” for any specified period of time 3 or that his symptoms were

       exacerbated in any way. Appellees’ Br. at 14. In sum, U.S. Xpress does not

       direct us to any evidence showing that Humphrey’s failure to take the

       bromocriptine exactly as prescribed “increased [his] harm, and if so, by how




       3
         U.S. Xpress alleges that Humphrey “took no hormone replacement medication throughout 2017,” but in
       support, it cites to pages 83-84 of the transcript of Humphrey’s testimony. Appellees’ Br. at 8. We find
       nothing on those pages to support U.S. Xpress’ contention. And U.S. Xpress does not direct us to any
       evidence showing discrete periods of time where Humphrey’s symptoms were exacerbated because of his
       failure to take medication as prescribed.

       Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019                         Page 8 of 10
       much.” See Willis, 839 N.E.2d at 1187; see also Buhring v. Tavoletti, 905 N.E.2d

       1059, 1066 (Ind. Ct. App. 2009) (holding that failure to mitigate damages

       instruction not warranted where plaintiff failed to use prescribed cervical

       traction device but defendant did not present evidence of a discrete, identifiable

       harm as a result); see also Simmons, 891 N.E.2d at 1070 (holding that failure to

       mitigate damages instruction not warranted where, “[e]ven if it could be

       inferred that [plaintiff’s failure to take medications or wear prescribed orthotics]

       somehow increased the harm, Erie has also failed to point to evidence

       establishing the extent of this increase”). There is insufficient evidence of

       increased harm to support giving the instruction.


[17]   Further, with respect to Humphrey’s failure to fill his prescription for

       eyeglasses, U.S. Xpress does not direct us to any evidence presented at trial

       regarding alleged vision problems that resulted from Humphrey’s failure to get

       those eyeglasses. Indeed, the evidence shows that Humphrey passed an eye

       examination in August 2018, without wearing eyeglasses, in order to renew his

       commercial driver’s license. Again, U.S. Xpress has not shown that

       Humphrey’s failure to get the eyeglasses prescription filled caused him any

       discrete harm.


[18]   We hold that the trial court erred when it instructed the jury on Humphrey’s

       failure to mitigate his damages. A party seeking a new trial on the basis of an

       improper jury instruction must show a reasonable probability that its substantial

       rights have been adversely affected. Elmer Buchta Trucking, Inc. v. Stanley, 744

       N.E.2d 939, 944 (Ind. 2001). As our Supreme Court has explained, “[a]n

       Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019      Page 9 of 10
       erroneous instruction merits reversal if it could have formed the basis for the

       jury’s verdict.” Fleetwood Enter., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492,

       495 (Ind. 2001). Here, the jury award was a general verdict, and, thus, the

       erroneous instruction “could have formed the basis for” that verdict. Id.

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


[19]   Reversed and remanded for a new trial.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-721 | September 30, 2019      Page 10 of 10
