Defendants routinely argue that plaintiffs need expert testimony to show that a particular form of damage was caused by a particular tortious act. This case shows that what’s sauce for the goose is sauce for the gander, and plaintiffs can make that same argument, too.
Harris was driving a vehicle when she was rear-ended by Jones. Harris sued Jones and the car’s insurer, Allstate.
The case was tried to a jury, at which Dr. Kurani’s testimony was introduced. 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.” Dr. Patel referred Harris for an MRI to determine the cause of her radicular symptoms, but Harris never went for the MRI.
The trial court provided the jury with a failure to mitigate instruction over Harris’s objections, and the jury returned a verdict for Harris of $10,000. Jones subsequently was awarded fees because Harris rejected a pretrial settlement offer of $25,000. Harris appealed.
On appeal, Harris challenged the trial court’s decision to instruct the jury on failure to mitigate. She argued that while she did not get an MRI, there was no evidence that this caused her damages to be any worse. The Court looked to the elements of a failure to mitigate defense, which has two elements:
First, the defendant must prove that the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damages.” 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.” The defendant must establish “resulting identifiable quantifiable additional injury.”
In this case, the Court found “complete lack of evidence on the second element, which required Defendants to point to a resulting identifiable quantifiable injury.”
The Defendants acknowledged this fact, but argued that they did not need to provide expert opinion on whether 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. But while the Court recognized that expert testimony may not be necessary to prove this element every time a defendant asserts failure to mitigate, it is necessary when the issue involves medical judgment.
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. We have held that where a plaintiff’s injuries are subjective in nature, expert medical testimony is required to prove causation. This same principle applies whether we are talking about causation in failure to mitigate or causation in the plaintiff’s case. 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.
As there was not “even a scintilla of evidence that Harris’s behavior resulted in an ‘identifiable quantifiable additional injury,’” the trial court erred when giving the failure to mitigate instruction. Thus, the case was remanded back for a new trial on damages only, and the fee award was vacated.
To succeed on a failure to mitigate defense, it is not enough to establish that the plaintiff acted unreasonably, the defendant must establish “resulting identifiable quantifiable additional injury.”
2. When the plaintiff’s injuries are subjective, the defendant must present expert testimony in support of medical causation attributable to plaintiff’s unreasonable post-injury conduct.
3. In the absence of such expert evidence, a defendant is not entitled to a failure to mitigate instruction.