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Fox v. Evans3/21/2005
Concurring: Mary Kay Becker, Ronald Cox
Published Opinion - Motion to Publish Granted May 3, 2005
An injured person may not recover damages proximately caused by that person's unreasonable failure to mitigate. Sutton v. Shufelberger, 31 Wn. App. 579, 582, 643 P.2d 920 (1982). We affirm the trial court's decision to instruct the jury on mitigation because there was evidence presented from which the jury could conclude that the plaintiff's treatment decisions were unreasonable. There was expert testimony that the plaintiff would not accept a diagnosis of depression and that if she treated her depression, her condition would improve. Additionally, there was evidence presented that the plaintiff discontinued medication and therapy that had alleviated some of her symptoms and had improved her condition. This evidence was sufficient for the jury to conclude that the plaintiff acted unreasonably. Under these circumstances, it was not an abuse of discretion for the trial court to instruct the jury on a plaintiff's duty to mitigate.
FACTS
Jody Fox sued Benton Evans for injuries alleged suffered in an automobile accident occurring in August 1999. Evans admitted liability, but contested the amount of damages owed to Fox. Evans alleged as an affirmative defense that Fox failed to mitigate her damages. The parties tried the issue of damages before a jury.
Fox's primary care physician, Dr. Ann Knowles, testified that Fox was depressed but that she refused to accept that diagnosis and did not want to try further antidepressants or therapy. Knowles testified that Fox may very well be of an underlying personality type that she may just never respond well to anti-depressants and some people have that. She has jumped through all the hoops. She has tried all of the different things and not done well with those treatment modalities, and for some people unfortunately that's just the way it is.
Report of Proceedings (RP) (Oct. 30, 2003) at 94. But Knowles also acknowledged that at trial, Fox was worse off than she was when she was taking certain medications and that Fox refused to try some treatments recommended to her.
Fox also presented the testimony of Dr. Ted Judd, a clinical neuropsychologist who treated Fox. Judd testified that Fox had the potential for moderate improvement by taking medication. He testified that Fox was reluctant to try further psychotherapy.
John Jordy, a mental health counselor, also testified about his treatment of Fox. Jordy's goal was to teach Fox how to better adapt to stressful situations. Jordy testified that after his first set of treatments with Fox, he saw a 30 percent reduction in her stress reactivity. He also testified that if she continued treatment, he anticipated an additional 50 percent improvement. Jordy testified that Fox was resistant to working on her depression. Jordy testified that Fox's reluctance to face her problems and treat them was a significant impediment to her recovery.
Fox also presented the testimony of Dr. John Perini, a clinical psychologist who treated her. Perini testified that Fox would have a better chance of recovery if she would treat her depression. Perini testified that he believed that antidepressants would be very beneficial to Fox '{i}f she would take and respond to them{.}' RP (Oct. 29, 2003) at 82.
Dr. Mary Pepping performed a psychological assessment of Fox and reviewed Fox's medical records. Pepping testified that Fox was quite depressed and that Fox disagreed with that diagnosis. Pepping testified that if Fox had received treatment for her depression within a year of the accident, 'some aspects of fu
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