Fox v. Evans

• Decision Date: 21 March 2005
• Docket Number: No. 53529-3-I.,53529-3-I.
• Citation: 127 Wash. App. 300,111 P.3d 267
• Parties: Jody FOX, a single person, individually, Respondent, v. Benton A. EVANS and Jane Doe Evans, husband and wife; and Unknown John Does, Appellants.
• Court: Washington Court of Appeals

111 P.3d 267

127 Wash. App. 300

Jody FOX, a single person, individually, Respondent, v. Benton A. EVANS and Jane Doe Evans, husband and wife; and Unknown John Does, Appellants.

No. 53529-3-I.

Court of Appeals of Washington, Division 1.

March 21, 2005.

Publication Ordered May 2, 2005.

Ralph J. Brindley, Luvera Barnett Brindley Beninger, Seattle, WA, for Appellants.

Hal Thurston, Zender Thurston, Bellingham, WA, for Respondent.

COLEMAN, J.

¶ 1 An injured person may not recover damages proximately caused by that person's unreasonable failure to mitigate. Sutton v. Shufelberger, 31 Wash.App. 579, 582, 643 P.2d 920 (1982). We affirm the trial court's decision to instruct the jury on mitigation because there was evidence presented from which the jury could conclude that the plaintiff's treatment decisions were unreasonable. There was expert testimony that the plaintiff would not accept a diagnosis of depression and that if she treated her depression, her condition would improve. Additionally, there was evidence presented that the plaintiff discontinued medication and therapy that had alleviated some of her symptoms and had improved her condition. This evidence was sufficient for the jury to conclude that the plaintiff acted unreasonably. Under these circumstances, it was not an abuse of discretion for the trial court to instruct the jury on a plaintiff's duty to mitigate.

FACTS

¶ 2 Jody Fox sued Benton Evans for injuries alleged suffered in an automobile accident occurring in August 1999. Evans admitted liability, but contested the amount of damages owed to Fox. Evans alleged as an affirmative defense that Fox failed to mitigate her damages. The parties tried the issue of damages before a jury.

¶ 3 Fox's primary care physician, Dr. Ann Knowles, testified that Fox was depressed but that she refused to accept that diagnosis and did not want to try further antidepressants or therapy. Knowles testified that Fox

may very well be of an underlying personality type that she may just never respond well to anti-depressants and some people have that. She has jumped through all the hoops. She has tried all of the different things and not done well with those treatment modalities, and for some people unfortunately that's just the way it is.

Report of Proceedings (RP) (Oct. 30, 2003) at 94. But Knowles also acknowledged that at trial, Fox was worse off than she was when she was taking certain medications and that Fox refused to try some treatments recommended to her.

¶ 4 Fox also presented the testimony of Dr. Ted Judd, a clinical neuropsychologist who treated Fox. Judd testified that Fox had the potential for moderate improvement by taking medication. He testified that Fox was reluctant to try further psychotherapy.

¶ 5 John Jordy, a mental health counselor, also testified about his treatment of Fox. Jordy's goal was to teach Fox how to better adapt to stressful situations. Jordy testified that after his first set of treatments with Fox, he saw a 30 percent reduction in her stress reactivity. He also testified that if she continued treatment, he anticipated an additional 50 percent improvement. Jordy testified that Fox was resistant to working on her depression. Jordy testified that Fox's reluctance to face her problems and treat them was a significant impediment to her recovery.

¶ 6 Fox also presented the testimony of Dr. John Perini, a clinical psychologist who treated her. Perini testified that Fox would have a better chance of recovery if she would treat her depression. Perini testified that he believed that antidepressants would be very beneficial to Fox "[i]f she would take and respond to them[.]" RP (Oct. 29, 2003) at 82.

¶ 7 Dr. Mary Pepping performed a psychological assessment of Fox and reviewed Fox's medical records. Pepping testified that Fox was quite depressed and that Fox disagreed with that diagnosis. Pepping testified that if Fox had received treatment for her depression within a year of the accident, "some aspects of function would be better." RP (Oct. 29, 2003) at 145. She also testified that "there was room for a moderate amount of improvement in the depression, anxiety area and more minor improvements in the cognitive and managing personality style areas." RP (Oct. 29, 2003) at 147. Pepping did note that some people do not respond to medication, but opined that patients should try as many medications as their doctors recommend.

¶ 8 Evans presented the testimony of Dr. Brooke Thorner, a board certified psychiatrist, who reviewed Fox's records and the deposition testimony of some witnesses. Thorner testified that Fox had effectively dealt with some of her symptoms with medication in the past. Thorner testified that Fox could work full-time. Thorner also testified that Fox could get back to 90 percent of her functioning if she would follow the treatment suggested by her doctors and therapists.

¶ 9 Evans also presented the testimony of Dr. Mary Reif, a board certified neurologist who examined Fox once and reviewed her records and the deposition testimony of experts. Reif testified that Fox did not have to be functionally impaired if she would take medication and treat her psychological issues. Reif testified that "given some treatment, I think that she would return to her baseline." RP (Nov. 4, 2003) at 97. Reif also testified that Fox is capable of working full-time.

¶ 10 Evans also presented evidence from Fox's medical records showing that Fox's condition improved while she was taking certain medications.

¶ 11 At the close of testimony, Evans requested that the court give an instruction on failure to mitigate. Fox objected to the instruction, arguing that Evans failed to present adequate testimony to support the instruction. The trial court disagreed and gave the mitigation instruction to the jury.¹ ¶ 12 The jury returned a damages verdict for $500,000. The jury also found that Fox failed to mitigate her damages, which accounted for 22 percent of her damages. Fox filed a CR 50(b) motion, requesting that the trial court exclude the 22 percent allocation of fault to her and enter a judgment for the full amount of the jury verdict. The trial court denied Fox's motion and entered judgment against Evans for $390,000. Fox appeals.

ANALYSIS

¶ 13 We review a trial court's decision to give a requested jury instruction for an abuse of discretion. Holmes v. Wallace, 84 Wash.App. 156, 163, 926 P.2d 339 (1996). "A person who is liable for an injury to another is not liable for any damages arising after the original injury that are proximately caused by the failure of the injured person to exercise ordinary care to avoid or minimize such new or increased damages...." 6 Washington Pattern Jury Instructions: Civil 33.02, at 359 (4th ed.2002). A defendant requesting a failure to mitigate instruction must show that there were alternative treatment options available to the plaintiff and that the plaintiff acted unreasonably in deciding on treatment. Hogland v. Klein, 49 Wash.2d 216, 221, 298 P.2d 1099 (1956). This rule recognizes that an injured party has some duty to lessen his or her damages. Hogland, 49 Wash.2d at 221, 298 P.2d 1099. Because the defendant caused the injury, however, it is the defendant's burden to show that the plaintiff acted unreasonably. Hawkins v. Marshall, 92 Wash.App. 38, 47, 962 P.2d 834 (1998).

"A wide latitude of discretion must be allowed to the person who by another's wrong has been forced into a predicament where he is faced with a probability of injury or loss. Only the conduct of a reasonable man is required of him. If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather that the other is chosen."

Hogland, 49 Wash.2d at 221, 298 P.2d 1099 (quoting Charles T. McCormick Handbook on the Law of Damages § 35, at 133 (1935)).

¶ 14 Fox relies primarily on this court's decision in Cox v. The Keg Restaurants U.S., Inc., 86 Wash.App. 239, 935 P.2d 1377 (1997) to argue that the trial court erred in giving the mitigation instruction. Fox focuses on language in Cox that suggests that a mitigation instruction is never proper when there is conflicting testimony.² Adopting this interpretation of Cox would virtually eliminate mitigation instructions in cases involving expert testimony. Cox, including the generalized statements regarding mitigation, must be read in light of the particular facts presented. In Cox, the only testimony presented regarding alternative treatments available to Cox was purely speculative. Cox suffered brain damage after he was assaulted by a drunken patron of The Keg Restaurant. Cox's doctor installed a shunt in Cox's brain to help drain excess fluid. Cox's psychiatrist testified that a shunt removal or revision might have improved Cox's condition. But the psychiatrist also testified that he was not an expert and would defer to Cox's neurosurgeon. The neurosurgeon specifically testified that removing the shunt would aggravate another condition and that he would need strong evidence that the shunt was over-draining before he would recommend revision. The Keg also challenged Cox's decision not to take antidepressant medication or engage in physical therapy and his delay in seeking speech therapy. Cox's psychiatrist did not testify affirmatively that these decisions prolonged Cox's recovery. Rather, he testified that these treatments might have been beneficial for Cox. This testimony was purely speculative and did not raise a debatable issue for the jury.

¶ 15 In contrast, here, all of Fox's treatment providers testified that Fox suffered from depression and refused to accept that diagnosis. There was also testimony that Fox's refusal to treat her depression impeded her recovery. Additionally, there was evidence that Fox experienced significant improvement while taking certain medications and participating in therapy but that she discontinued these treatments. This distinguishes Fox's...