                                                                             FILED
                                                                        Mar 20 2020, 9:38 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE JOE
Andrew A. Crosmer                                          JONES, JR.
Rubino, Ruman, Crosmer & Polen                             Shawn C. Swope
Dyer, Indiana                                              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,                                              March 20, 2020
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           19A-CT-1196
        v.                                                 Appeal from the Lake Superior
                                                           Court
Joe Jones, Jr., and Allstate                               The Honorable Bruce D. Parent,
Insurance Company,                                         Judge
Appellees-Defendants                                       Trial Court Cause No.
                                                           45D11-1406-CT-121



Crone, Judge.

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

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


      Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020       Page 3 of 10
[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.




      Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020        Page 4 of 10
      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).

      Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020            Page 5 of 10
              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 post-

      injury 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

      Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020          Page 6 of 10
       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]   Defendants 2 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.

       Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020                             Page 7 of 10
       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.




       Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020         Page 8 of 10
[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.

       Court of Appeals of Indiana | Opinion 19A-CT-1196 | March 20, 2020                                  Page 9 of 10
       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.

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