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September 2011 Archives

Duty to Mitigate Charge Clarified

In Drake v. Bingham (AC 30265) (to be released September 27, 2011), the Appellate Court reversed the medical malpractice verdict in favor of the defendant on the grounds that the trial court failed to properly charge the jury on the issue of mitigation of damages. The court's instruction did not clearly state, nor could it have been readily inferred by the layperson, that the jury is to deduct only that portion of damages attributable to an aggravation or increase in injury caused by the failure to mitigate and that the defendant has the burden to prove such aggravation or increase.