A defendant in a Washington personal injury case may try to limit damages by alleging the plaintiff failed to mitigate damages. A defendant seeking a failure to mitigate jury instruction must show that the plaintiff acted unreasonably in deciding on treatment when there were alternative options. The defendant must show through expert testimony that the alternative treatment would more likely than not improve the plaintiff’s condition. A defendant recently challenged a court’s decision not to instruct the jury on failure to mitigate in an automobile collision case.
According to the appeal court’s opinion, the defendant rear-ended the plaintiff’s vehicle. The plaintiff went to a chiropractor who found she had a ligament injury as a result of the accident. The chiropractor also found the injury was permanent.
The plaintiff filed suit and the defendant admitted liability, leaving only damages at issue for trial. According to the opinion, the plaintiff worked as a licensed practical nurse. She testified she had talked with her colleagues about her treatment options. She did not want to take medications that would interfere with her work, or to have surgery or injections. She testified the chiropractic treatments helped manage her pain. She also testified that immobilization was no longer recommended and that no one she talked to recommended it to her.