FILED
Sep 08 2020, 12:16 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 20S-CT-548
Patrick Humphrey,
Appellant,
–v–
Brian Tuck, US Xpress, Inc.,
Appellees.
Argued: May 21, 2020 | Decided: September 8, 2020
Appeal from the Jackson Superior Court
No. 36D01-1604-CT-22
The Honorable AmyMarie Travis, Judge
On Petition to Transfer from the Indiana Court of Appeals
Case No. 19A-CT-721
Opinion by Justice Slaughter
Chief Justice Rush and Justices David, Massa, and Goff concur.
Slaughter, Justice.
The amount of evidence necessary for a court to instruct a jury on a
mitigation-of-damages defense is minimal, requiring only a “scintilla”.
This stands in contrast to the preponderance-of-the-evidence standard
required to prevail on the defense. Here, there was enough evidence to
support giving the challenged instruction. We grant transfer and affirm
the trial court.
I
In early February 2016, plaintiff, Patrick Humphrey, was driving from
Georgia to Iowa to start a new job. While he was traveling through
Indiana, a tractor-trailer sideswiped Humphrey’s rental car, and he hit his
head against his car’s window. Defendant Brian Tuck, a driver for
defendant US Xpress, Inc., was behind the wheel of the tractor-trailer and
kept driving after the contact. Humphrey eventually flagged Tuck down,
and they exchanged information and called police. When the officer
arrived, he asked whether Humphrey was injured and needed assistance.
Humphrey said no. He then resumed his trip to Iowa. As he was driving,
Humphrey felt something in his left eye but thought it was dust.
After arriving in Iowa, Humphrey experienced more severe eye
irritation and, while washing out his eye, pulled out a sliver of glass. His
vision changed the next day, and he went to a local hospital. There, he
was referred to an ophthalmologist, who recommended an MRI of his
brain. The MRI showed a tumor on his pituitary gland, and the
ophthalmologist warned that Humphrey would go blind if he did not
have the tumor “taken care of”. Humphrey then returned home to
Georgia by bus.
In late February, Humphrey consulted a neurosurgeon, Dr. John
Vender, about the tumor, headaches, and worsening vision. Vender said
the tumor was a prolactinoma, a non-cancerous tumor of the pituitary
gland that secretes the hormone prolactin. Vender also said that
Humphrey had a pituitary apoplexy, a rapid increase in the size of a pre-
existing tumor, often triggered by a sudden event and caused by bleeding
into the tumor. Vender recommended surgery and removed the tumor.
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Four months later, Humphrey met with an endocrinologist, Dr.
Maximillian Stachura, because Humphrey had symptoms of a hormonal
imbalance. The imbalance was due to Humphrey’s low level of
testosterone and his high level of prolactin. A high amount of prolactin
can cause or exacerbate testosterone-related issues—including weight
gain, lethargy, and low sexual drive—so Stachura prescribed medicine,
bromocriptine, to lower his prolactin level. But Humphrey could not
initially afford to fill the prescription. Later, after he began taking it, two
things happened: his prolactin level dropped, and he experienced
significant nausea. Because of this side effect, Stachura told Humphrey to
stop taking the medicine and to make an appointment to find a suitable
alternative. But Humphrey never made the appointment. Instead, he
waited over a year to start testosterone injections. Once he began the
injections, his symptoms greatly improved.
Because of the accident and its aftermath, Humphrey sued Tuck and
US Xpress. He alleged the accident caused a pre-existing tumor to swell in
size and asserted legal theories based on negligence, negligence per se,
and respondeat superior. At trial, liability was not an issue—Tuck and US
Xpress admitted fault for the accident. The only issue was damages, and
Tuck and US Xpress argued that Humphrey failed to mitigate them. To
support their argument at trial, Tuck and US Xpress pointed to evidence
that Humphrey did not initially take the medicine prescribed for him, that
it worked when he did take it, that he stopped taking it because of side
effects, that he did not immediately follow up as directed to find an
alternative medicine, and that despite claiming vision problems, he failed
to fill an eyeglasses prescription.
At the conclusion of evidence, Tuck and US Xpress asked for a jury
instruction on failure to mitigate damages. Humphrey objected, arguing
there was not enough evidence to justify giving the instruction. The trial
court disagreed and instructed the jury:
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
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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.
The jury, so instructed, returned a verdict awarding Humphrey $40,000,
and the trial court entered judgment on that verdict. Humphrey then filed
a post-judgment motion to correct error, again arguing the mitigation
instruction was unsupported by the evidence. The trial court denied the
motion, and Humphrey appealed.
The court of appeals agreed with Humphrey. It noted that a failure-to-
mitigate-damages defense has two elements. Humphrey v. Tuck, 132 N.E.3d
512, 516 (Ind. Ct. App. 2019), trans. granted. The first is that the plaintiff
did not exercise reasonable care in mitigating post-injury damages. The
second is that the plaintiff’s lack of reasonable care caused him to suffer an
identifiable harm not attributable to defendant’s negligence. Id. The court
of appeals found there was not sufficient evidence of the second element,
so it reversed the trial court’s decision on the jury instruction. And
because the jury’s verdict was general—making it impossible to know
whether, or to what extent, the instruction affected the verdict—it ordered
a new trial on damages. Id. at 516–17.
II
A
Trial courts generally enjoy considerable discretion when instructing a
jury. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002). When
a party challenges a trial court’s decision to give or refuse a proposed jury
instruction, a reviewing court considers three things:
• Does the instruction correctly state the law?
• Is the instruction supported by evidence in the record?
• Is the instruction’s substance covered by other instructions?
Id. Only the first consideration is a legal question on which the trial court
receives no deference. The other two are reviewed for an abuse of
discretion. Id.
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This case is about the second consideration: the amount of evidence
needed to instruct the jury. We have set the evidentiary bar deliberately
low because our constitution guarantees the right to a jury trial in both
criminal and civil cases. Ind. Const. art. 1, §§ 13(a), 20. Consistent with
these rights, “[a] party who makes a proper request is entitled to have an
instruction based upon his own theory of the case if within the issues and
there is any evidence fairly tending to support it.” Lavengood v. Lavengood,
225 Ind. 206, 211, 73 N.E.2d 685, 687 (1947) (citing Carpenter v. State, 43 Ind.
371, 373 (1873)) (emphasis added). This “any evidence” standard applies
to instructions for both claims and defenses. See id. at 210–12, 73 N.E.2d at
687 (discussing plaintiff’s instructions to support his claim); Indianapolis
Horse Patrol, Inc. v. Ward, 247 Ind. 519, 525, 217 N.E.2d 626, 629 (1966)
(noting defendants’ instructions to support their qualified-privilege
defense).
For example, in Hernandez v. State, 45 N.E.3d 373 (Ind. 2015), a criminal
case, we held it was reversible error for the trial court to refuse the
defendant’s proposed instruction on the defense of necessity. In
describing the applicable evidentiary standard for instructing the jury, we
referred interchangeably to the minimal requirements of “some” evidence
and a “scintilla” of evidence.
Thus, after reviewing the record, it appears that there is at least
some evidence supporting each element of the necessity
defense. Even if there is only a “scintilla” of evidence in
support of a criminal defendant’s proposed defense instruction,
it should be left to the province of the jury to determine
whether that evidence is believable or unbelievable.
Id. at 378 (emphasis added). A jury should hear a tendered instruction if
the record, though “meager”, contains “any facts or circumstances”
pertinent to the case. Reed v. State, 141 Ind. 116, 122–23, 40 N.E. 525, 527
(1895). The reverse is also true. A trial court may refuse a jury instruction
only when “[n]one of the facts” in the record would support the legal
theory offered in the instruction. Sims v. Huntington, 271 Ind. 368, 373, 393
N.E.2d 135, 139 (1979).
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Thus, under Indiana law, the party seeking an instruction need only
produce some evidence—a “scintilla”—of each element of the underlying
claim or defense. See, e.g., id. at 373, 393 N.E.2d at 139. There is an
important symmetry here. No party—neither plaintiff nor defendant—
need affirmatively prove its claim or defense before the trial court
instructs the jury on the issue. The party need only point to some evidence
in the record that when viewed most favorably would suffice for a
reasonable juror to decide the issue in the party’s favor.
B
We turn next to the affirmative defense at issue here—failure to
mitigate damages. Our leading case on this defense is Willis v. Westerfield,
839 N.E.2d 1179 (Ind. 2006), a personal-injury case. There, we explained
that tort plaintiffs must mitigate post-injury damages; otherwise, the
damages they can recover are reduced “by those damages which
reasonable care would have prevented.” Id. at 1187 (citing Kocher v. Getz,
824 N.E.2d 671, 674 (Ind. 2005)). Thus, a plaintiff’s failure to mitigate
damages is not an affirmative defense to liability; it merely reduces the
damages the plaintiff may recover. Id. In other words, the defense
concerns not a defendant’s liability but a claimant’s actions or omissions
that worsen the claimant’s injuries. Id.
The defense has two elements, and to prevail the defendant must prove
each element by a preponderance of the evidence. Id. at 1188. The first is
that the plaintiff did not exercise reasonable care in mitigating post-injury
damages. Id. The second is that the failure to exercise reasonable care
caused the plaintiff to suffer harm beyond that attributable to the
defendant’s negligence. Id. When the defense is that the plaintiff did not
follow medical advice, thus aggravating his own injuries, the defendant
must prove the plaintiff’s neglect caused him “to suffer a discrete,
identifiable harm arising from that failure, and not arising from the
defendant’s acts alone.” Id.
Proving such causation often will require expert medical testimony, but
not always. Id. In Willis, we rejected a bright-line rule that would have
required expert testimony across the board. Instead, we held that whether
to give such a failure-to-mitigate instruction must be decided on a “case-
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by-case basis.” Id. at 1189. In each case, after the close of evidence, the trial
court must determine whether the defendant “produced enough evidence
of causation” to support an instruction on the mitigation-of-damages
defense. Id. In answering that question, the court should consider whether
the medical issue is within the “common experience, observation, or
knowledge of laymen.” Id. (citation omitted). “If it is, and the defendant
has produced competent non-expert evidence of causation,” then the lack
of expert testimony “does not preclude an instruction on failure to
mitigate.” Id.
C
Last, we consider whether the court below erred by instructing the jury
on the failure-to-mitigate defense. Humphrey’s only objection is that the
instruction is not supported by the evidence. We disagree and hold there
was no error because the instruction finds support in this record.
Here, as in Willis, the failure-to-mitigate defense is based on
Humphrey’s having ignored the advice of his treating physician.
Humphrey concedes there is evidence on the defense’s first element—
namely, that he did not exercise reasonable care to mitigate his post-injury
damages. Willis, 839 N.E.2d at 1188. But on the second element,
Humphrey argues that Tuck and U.S. Express failed to offer evidence that
Humphrey’s lack of reasonable care caused him greater injury than he
would have suffered had he followed his doctor’s orders. According to
Humphrey, no one—neither medical experts nor lay witnesses—testified
that his ignoring his physician’s advice “increased his harm” by any
identifiable, quantifiable amount. The issue, though, is not only whether
Humphrey’s failure to follow orders “increased” his harm but also
whether it prolonged the suffering of which he complains—and which he
attributes to defendants’ negligence—in any discrete, measurable way.
Recall that Humphrey’s theory of the case is that a preexisting pituitary
tumor became “apoplectic”—it swelled—due to trauma from the accident.
According to Humphrey, the trauma caused physical symptoms for which
he sought damages, including “acute vision loss” and elevated prolactin
levels that led to truncal obesity, fatigue, and low libido. On the issue of
damages, defendants argued that to the extent their negligence harmed
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Humphrey, he did not exercise reasonable care in mitigating that harm.
And they pointed to evidence in the record that Humphrey’s own failings
either aggravated his injuries or prolonged them. In other words,
defendants say, Humphrey would have suffered less had he done more.
We agree with Tuck and U.S. Xpress that there was sufficient evidence
to support instructing the jury on their defense of failure to mitigate
damages. As to Humphrey’s vision, he testified that he had no vision
problems before the accident. Since the accident, he complains of vision
problems that, he says, limit his ability to drive a vehicle; make it harder
for him to see at night, especially if it is raining; and affect his ability to
read signs and see peripherally. Yet even with these vision issues,
Humphrey has not worn corrective eyeglasses or contacts—despite
having a prescription for glasses that he never filled. For the past year, he
did not return to the optometrist to get a new prescription, despite
acknowledging that new glasses “may” help his vision. And he conceded
that he made an appointment to see an optometrist about getting new
glasses for his eyesight. Under our minimal standard for instructing the
jury, this is enough evidence to allow a lay jury to consider whether
Humphrey’s vision would have improved had he either filled an existing
prescription for eyeglasses or obtained a new prescription.
As to Humphrey’s hormonal imbalance, the record shows that Dr.
Stachura prescribed bromocriptine to reduce Humphrey’s prolactin level.
This level, if left untreated, can cause or exacerbate testosterone-related
issues, including the low-energy issues of which Humphrey complains.
Yet Humphrey did not immediately begin taking bromocriptine. Later,
when he took it consistently, “his prolactin levels had decreased
significantly.” Humphrey, 132 N.E.3d at 516. But Stachura also testified that
Humphrey stopped taking the bromocriptine because of nausea, that
Humphrey was told to follow up to fix the problem, but that he did not.
Once Humphrey eventually began the alternative treatment of
testosterone injections—a year and a half after stopping the
bromocriptine—his symptoms improved. When asked on cross-
examination whether the testosterone injections were helping, Humphrey
said they “help[ed] in a lot of ways”, and that he had already noticed
improvement. As with Humphrey’s vision, this evidence, viewed most
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favorably for defendants, would allow a reasonable juror to conclude that
Humphrey’s continuing symptoms qualified as an identifiable harm
attributable not to defendants’ negligence but to his failure to follow his
doctor’s orders. No more is required to instruct the jury.
Our opinion in Willis teaches that a defendant is entitled to a failure-to-
mitigate instruction if the evidence would support a finding that the
plaintiff’s own actions or omissions failed to mitigate his own harm by
any “quantifiable amount or specific item.” 839 N.E.2d at 1190. The
requirement of a “quantifiable” harm does not mean the defendant must
prescribe a specific numerical value to the plaintiff’s increased or
prolonged harm. The respective burdens on plaintiffs and defendants are
symmetric—a defendant’s burden is no greater than a plaintiff’s. Just as
Humphrey did not need to quantify his request for damages to any degree
of mathematical precision, neither did Tuck and U.S. Xpress need to do so
on their defense. In both cases, it was up to the jury to determine whether,
and to what extent, Humphrey was injured due to the defendants’
negligence and, likewise, whether, and to what extent, Humphrey failed
to mitigate his own damages.
* * *
For these reasons, the trial court did not abuse its discretion in giving
the failure-to-mitigate instruction. Thus, we affirm its judgment, including
its denial of Humphrey’s motion to correct error.
Rush, C.J., and David, Massa, and Goff, JJ., concur.
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ATTORNEY FOR APPELLANT
Michael W. Phelps
Phelps Legal Group
Bloomington, Indiana
ATTORNEYS FOR APPELLEES
Michael B. Langford
R. Jay Taylor, Jr.
Scopelitis, Garvin, Light, Hanson & Feary, P.C.
Indianapolis, Indiana
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