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Appeals judges reverse trial judge's holding that jury should not penalize man who followed doctor's orders

Richard Brehmer suffered a serious shoulder injury in a car accident.  He sued State Farm, the at-fault driver, and his own underinsured motorist coverage with Auto Owners.  Ultimately, the jury ruled that he had suffered $150,000.00 in damages, but also took away $50,000.00 of that recovery by attributing that percentage of fault to Brehmer.  The insurance companies had argued that Brehmer's home exercise program was inadequate, that he should have undertaken institutional physical therapy, and that he therefore "failed to mitigate" his damages.  They presented two IME doctors' testimony to support this argument.

Brehmer presented the testimony of his own doctors who confirmed that he followed their orders and that the treating doctor felt that home exercises were an adequate replacement for PT.  Citing the latter evidence, the trial judge ruled that a patient who has followed his doctor's orders cannot be held to have "failed to mitigate" his damages, and reinstated the full verdict.  The insurers appealed and the Court of Appeals reversed. 

The appellate judges ruled that the trial judge was attempting to serve as a substitute juror and abused his discretion.  They held that there was "at least a triable fact regarding whether Brehmer took reasonable steps to address his condition through physical therapy." 

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