Failure to Mitigate--Put a Number on It

We sent another newsletter about failure to mitigate. It outlined the general principles. But it didn't cover one of the strongest antidotes to the defense.

It's not enough for defendants to say that the injured person should've done something differently. Now defendants actually have to be able to show, objectively and mathematically, that a different course would've made a difference.

It's not enough anymore for defendants to say: "Oh, the plaintiff should've attended those last four physical therapy sessions." Defendants have to be able to show that those last four physical therapy sessions would have made the plaintiff X% better.

Seriously, what doctor is going to testify with that degree of exactness? That's an extremely tough burden – and it is the defendant's burden anytime affirmative defenses are asserted – to satisfy.

Why is this important? Is X% going make a big difference in terms of the outcome? Maybe not in terms of damages, but it can have a huge difference when we're talking about concepts like joint and several liability.

There is no joint and several liability when the plaintiff is comparatively at fault. And failure to mitigate is a species of comparative fault. Being able to knock out defenses, like failure to mitigate can have enormous effect on leverage and case outcome.