Willis v. Westerfield

• Decision Date: 17 November 2004
• Docket Number: No. 49A02-0211-CV-930.,49A02-0211-CV-930.
• Parties: Ann WILLIS and Jeff Willis, Appellants-Plaintiffs, v. Christopher WESTERFIELD, Appellee-Defendant.
• Court: Indiana Appellate Court

817 N.E.2d 672

Ann WILLIS and Jeff Willis, Appellants-Plaintiffs, v. Christopher WESTERFIELD, Appellee-Defendant.

No. 49A02-0211-CV-930.

Court of Appeals of Indiana.

November 17, 2004.

Robert E. Lehman, Lehman & Benedetto, Indianapolis, IN, Jeffrey A. Cooke, The Cooke Law Office, Lafayette, IN, for appellants.

Thomas D. Collignon, Collignon & Dietrick, P.C., Indianapolis, IN, for appellee.

OPINION ON REHEARING

VAIDIK, Judge.

On rehearing, the Willises raise three issues, one of which we find dispositive; namely, whether the trial court erred by instructing the jury on the affirmative defense of failure to mitigate damages. Initially, we found no error in the trial court's decision to instruct the jury on the failure to mitigate defense. See Willis v. Westerfield, 803 N.E.2d 1147, 1155 (Ind.Ct.App.2004). Upon further reflection, we now reach the opposite conclusion.

The mitigation of damages doctrine is "the principle requiring a plaintiff, after an injury or breach of contract, to make reasonable efforts to alleviate the effects of the injury or breach." Black's Law Dictionary 1024 (8th ed.2004). In Indiana, we have opted to focus on whether the plaintiff's action or inaction aggravated or increased the plaintiff's injuries. See, e.g., Wiese-GMC, Inc. v. Wells, 626 N.E.2d 595, 599 (Ind.Ct.App.1993) ("[T]he principle of mitigation of damages addresses conduct by an injured party that aggravates or increases the party's injuries."), reh'g denied, trans. denied; see also Sikora v. Fromm, 782 N.E.2d 355, 362 (Ind.Ct.App.2002) (same), trans. denied; Nelson v. Marchand, 691 N.E.2d 1264, 1271 (Ind.Ct.App.1998) (same).

In addition, recent cases have also stressed the requirement that there be expert testimony that the plaintiff's injuries have been aggravated or increased before a jury may be instructed on the affirmative defense of failure to mitigate damages. See, e.g., Mroz v. Harrison, 815 N.E.2d 551, 557 (Ind.Ct.App., 2004) (holding that the trial court did not abuse its discretion by determining that the evidence did not support the giving of a mitigation of damages instruction where there was no expert medical testimony that the plaintiff's failure to cooperate with prescribed treatment, exaggeration of symptoms, and failure to complete physical therapy aggravated or increased his injuries); Wilkinson v. Swafford, 811 N.E.2d 374, 384 (Ind.Ct.App.2004) (holding that the trial court abused its discretion by instructing the jury on mitigation of damages where there was no expert medical testimony that the plaintiff's failure to follow up in a timely manner, her decision not to have surgery, her decision not to have a nerve root block, and her lack of cooperation during a diagnostic exam aggravated or increased her injuries); Kristoff v. Glasson, 778 N.E.2d 465, 474 (Ind.Ct.App.2002) (holding that evidence that the plaintiff did not regularly perform her prescribed exercises was insufficient to support a mitigation of damages claim in the absence of physician testimony that she failed to mitigate her damages).

At trial, Westerfield did not present his own medical expert to establish that Ann Willis failed to mitigate her damages. Nor did he elicit any testimony from the Willises' medical expert that Ann aggravated or increased her injuries by failing to follow the course of treatment he prescribed. In light of the cited cases and the dearth of expert medical testimony that Ann's sporadic course of treatment aggravated or increased her injuries, we now find that the trial court erred in instructing the jury on the affirmative defense of failure to mitigate damages. Because we find that the jury was improperly instructed, we must vacate the jury's damages award and remand for a new trial as to damages only.

Additionally, the Willises allege that the trial court erred by denying their motion to redact portions of the video deposition testimony of their medical expert, Dr. Silbert, which was played to the jury. Because we are reversing and remanding for a new trial on damages, we need not decide whether the trial court erred in denying the Willises' motion to redact certain portions of Dr. Silbert's deposition. However, because our ultimate responsibility as an appellate tribunal is to provide guidance for our trial courts, we review the law regarding the general parameters for cross-examination.

The Willises contend that they were unduly prejudiced by the jury's exposure to those parts of the deposition during which defense counsel allegedly engaged in a "fishing expedition," peppered with inappropriate questions about "pre-existing conditions, subsequent conditions and other unrelated physical conditions for which Westerfield's attorney knew no evidence of medical expert causation existed that causally linked the asserted conditions to Ann Willis' collision injuries."¹ Appellant's Br. p. 27-28. By injecting a requirement of medical expert causation evidence, the Willises are essentially trying to insulate their expert's opinion from being...