Id. Recent Indiana case law clearly indicates that the affirmative defense of failure to mitigate damages requires medical causation evidence that a plaintiff's conduct aggravated or increased her injury. See, e.g., Mroz v. Harrison, 815 N.E.2d 551, 556-57 (Ind.Ct.App. 2004); Wilkinson v. Swafford, 811 N.E.2d 374, 384 (Ind.Ct.App. 2004); Kristoff v. Glasson, 778 N.E.2d 465, 474 (Ind.Ct.App. 2002). The issue then before this Court is whether there was any medical causation evidence before the trial court to support Staton's affirmative defense of failure to mitigate damages either directly or inferentially.
All three cases relied on by Plaintiff were assigned red flags - indicating that they are no longer good for at least one point of law - by the Westlaw staff. See Wilkinson v. Swafford, 811 N.E.2d 374 (Ind. Ct. App. 2004); Mroz v. Harrison, 815 N.E.2d 551 (Ind. Ct. App. 2004); Staton v. Hawkins, 818 N.E.2d 79 (Ind. Ct. App. 2004). In Willis, the Indiana Supreme Court cited these three cases and provided a parenthetical summarizing each case. It appears that Plaintiff has lifted the three parentheticals from Willis verbatim.
); Kristoff v. Glasson, 778 N.E.2d 465, 474-75 (Ind.Ct.App. 2002) (where the defendant argued that the plaintiff's continuing headaches were the result of the plaintiff's failure to follow a recommended home exercise program, holding broadly "The mitigation of damages claim went to the issue of medical causation and, as such, required medical expert testimony.").Wilkinson v. Swafford, 811 N.E.2d 374, 384 (Ind.Ct.App. 2004) (testimony elicited on cross-examination of plaintiff's treating physicians that the plaintiff failed to follow up in a timely manner, decided not to have a recommended surgery, decided not to have a nerve root block, and was uncooperative during a diagnostic exam, was insufficient to support a failure to mitigate damages instruction because the defendant was required to produce some medical testimony that Wilkinson's actions, or inactions, aggravated or increased her injuries."); Mroz v. Harrison, 815 N.E.2d 551, 557 (Ind.Ct.App. 2004) (refusal to instruct the jury on failure to mitigate damages was proper where the defendant alleged that plaintiff failed to cooperate with prescribed treatment and exaggerated symptoms but did not present any medical expert testimony to establish a causal connection between these failures and an aggravation or increase in the plaintiff's injuries); Staton v. Hawkins, 818 N.E.2d 79, 84-87 (Ind.Ct.App. 2004) (where the defendant claimed that the plaintiff's decision to continue to ride and race four-wheel, all-terrain vehicles after a car collision aggravated and increased the plaintiff's wrist injury suffered in the collision, holding that "Recent Indiana case law clearly indicates that the affirmative defense of failure to mitigate damages requires medical causation evidence that a plaintiff's conduct aggravated or increased her injury" and concluding that the defendant had failed to produce such evidence). To the extent these cases suggest that expert testimony is always required, w
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