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Humphrey v. Tuck

Court of Appeals of Indiana

September 30, 2019

Patrick Humphrey, Appellant-Plaintiff,
Brian Tuck and U.S. Xpress, Inc., Appellees-Defendants.

          Appeal from the Jackson Superior Court No. 36D01-1604-CT-22. The Honorable Amy Marie Travis, Judge

          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

          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, 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 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 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 trial ...

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