Patrick Humphrey v. Brian Tuck and U.S. Xpress, Inc. ( 2019 )


Menu:
  •                                                                                   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