What is an eggshell plaintiff?
Personal injury law has always required a negligent person to pay for all damages suffered by the person they injure. This is due to the eggshell plaintiff rule that holds that the weakness or sensitivity of a victim cannot be used against them in court. But calculating those damages can be difficult, especially if they increased due to a past condition or injury. Personal injury lawyers and insurance lawyers battle over this issue on a daily basis.
Defense attorneys claim that the wrong-doer is not liable for the portion of the injury that pre-existed the accident. But the tortfeasor must take the person they harmed as they found them. The victim cannot be blamed for being vulnerable. An accident will cause them to suffer a greater injury and larger damages than the average person.
1. Eggshell plaintiff with a fragile condition
Some people have a debilitating condition which makes them more likely to be injured than those who are younger or in better health. For example, consider the extraordinary injuries that could be suffered in a typical car wreck by someone who has
- hemophilia and bleeds to death after cutting their hand;
- a fragile “eggshell skull” who strikes his head and suffers a traumatic brain injury; or
- a chronic heart condition who goes into cardiac arrest and dies.
Other people suffer from arthritis or degenerative disc disease, especially the elderly.
2. Previously injured plaintiffs
Other people have already suffered an injury to the same part of the body and that injury was aggravated due to the wrongful act.
Many people have previous injuries and manage their pain or the pain disappeared. For example, someone may have been in a car collision 10 years ago and been diagnosed with a small disc bulge, but resumed their normal life with little if any pain.
However, they are more susceptible to re-injury. So after their second wreck, their MRI might reveal that they now have a herniated disc that is causing excruciating pain. They may need surgery.
Common injuries that are re-injured are to the head, neck and back due to broken bones, torn tendons, ligaments, or muscles. Almost everyone has hurt one part of their body or another in the past.
Legal problems presented
Both categories raise these legal questions:
1. How can you measure how much pain the plaintiff was in before the accident and how much new pain they have suffered?
2. Who bears the burden of proof?
3. What expert testimony is required?
4. Which instructions are given by the court?
There is no Texas Supreme Court decision and only a few Courts of Appeal rulings on this subject that answer these questions.
There is a lengthy analysis in the recent federal case of Koch v. United States. An injured longshoreman in Louisiana who suffered from a degenerative spine and osteoarthritic knees fell down stairs on a ship and was seriously injured. The federal government claimed that it was not responsible for worker’s compensation payments due to his preexisting conditions. The trial court instructed the jury that they should consider damages due to the aggravation of a previous injury. The Fifth Circuit affirmed the trial court’s substantial verdict for the plaintiff.
What happens in these cases?
In both categories, insurance companies often claim that they are not responsible for paying the damages claimed. They argue they are only liable for the damages their policyholder caused from the date of the tort forward — if there was a new injury at all.
Read: How preexisting injury can harm your case unless you do these things
These cases often go to trial. The judge decides whether an eggshell plaintiff or preexisting injury instruction should be given to the jury. It hears evidence about prior conditions and decides damages.
There can be legal road blocks. In every negligence claim, the plaintiff must convince the judge or jury of certain elements. One is that the defendant’s breach of the duty they owed caused their injuries. Another is that this breach is the proximate cause of their losses.
The plaintiff will need documentation from an accident reconstruction expert and doctors. Magnetic resonance images may show that they need major surgery to repair discs in their spinal column. Or they may have injured discs but at a different levels and places.
The personal injury lawyer will obtain your complete medical files and diagnostic films, not just since the crash date, but for the five to ten years before it happened. They can prove that the plaintiff had no previous injury or that it is a different one.
Texas trial law is adding a new instruction
The 2020 Texas Pattern Jury Charges that may be published next month will apparently revise the instructions substantially. We will revise this post when the PJC is published.
We can help you
We specialize in motor accident cases and have helped injured drivers across Texas for over 40 years. Many have preexisting conditions or are older.
We use our expertise and experience to fight insurance company abuse and unfair tactics. We recently filed a lawsuit when a company’s driver crashed into our frail clients who were 82 and 81 and recovered a substantial amount.
If you have any questions, please contact us.
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Please contact our office if you have any questions.