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The Eggshell Plaintiff Rule: Opposing Perspectives
from THL_JanFeb20
by QuantumSUR
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The Eggshell Plaintiff Rule: Opposing
Perspectives
The Pla inti Pers ective H f you have negotiated with an insurance company lately, you might have noticed that adjusters do not seem to grasp the thin-skulled plaintiff rule, also known as the eggshell plaintiff doctrine. Many times, when you have a Plaintiff who has any pre-existing condition of the same area (especially issues with the spine), adjusters dismiss claims for substantial injuries and pain after an auto accident. You commonly hear, “Well he had a bad back anyway.” This often occurs with plaintiffs who have undiagnosed, asymptomatic, degenerative disc disease of the spine, or other spinal conditions. Generally, these plaintiffs were carrying on with their lives, pain-free, until they were involved in an automobile collision, and then the insurance adjuster tells them their case is not worth anything because they have a pre-existing condition.
It is well settled law in Texas that a tortfeasor takes a plaintiff as he finds him. 1 There are five excellent cases that delineate the establishment of the case law in Texas on this topic. Taking you back to 1889, when Texas had only been a State for 44 years, there was the Driess v. Friederick case. 2 In Driess, the plaintiff broke his leg falling through a defective cellar-grating, which was known by the defendant to be defective. The injuries resulting from the broken leg disabled the plaintiff from being able to perform any vocation. The defendant pleaded that the plaintiff’s leg had previously been broken in the same place, which aggravated the injuries he received through the defendant’s failure to use due care. The defendant thus sought a jury instruction to that effect to lessen the awarded damages. 3 Indeed, the evidence showed that the first injury, 16 years prior, had weakened the bone, causing the bone to fracture more easily “than it would have... had not the first fracture occurred.” 4 The Court held, in groundbreaking law for Texas, that “[t]he damages which [Plaintiff] was entitled to recover were the damages resulting to himself, conditioned as he was at the time of the injury, and not such damages as he might have been entitled to had his condition been different.” 5 After this case, there is a shift in how Texas courts examined proximate cause in relation to foreseeability (or ‘anticipation’ or ‘contemplation’, as some cases refer to it). Everyone has read Palsgraf, right? In 1919, the Texas Commission of Appeals addressed the pre-existing condition issue in Collins v. Pecos & N.T. Ry. Co. 6 In Collins, a railroad foreman was poisoned when he handled wet rail ties that were recently soaked in creosote, which is poisonous. Evidence showed that most individuals would experience a burning sensation compared to a sunburn when creosote was applied to the skin. However, the plaintiff in Collins suffered a “constitutional disorder” and/or “systemic poisoning” far different from what most people experienced upon exposure to wet creosote. The Commission of Appeals of Texas reviewed the Court of Civil Appeals holding that overturned a trial jury verdict for the Plaintiff. The
Court of Civil Appeals had addressed the issue of “whether an employer would be charged with negligence in failing to warn of such danger, when it did not know and could not know that a constitutional disorder would result from such a use—in other words, was such an injury incidental to the wrong done, and was it such as may have reasonably been supposed to have entered into the contemplation of the [Defendant].” 7 After taking up the case on appeal, the Commission held that it:
is not, however, essential to make a negligent act the proximate cause of an injury that the particular injurious consequences and the precise manner of their infliction could reasonably have been foreseen. If the consequences follow in unbroken sequence from the wrong to the injury without any intervening efficient cause, it is sufficient that if at the time of the negligence the wrongdoer might by the exercise of ordinary care have foreseen that some injury might result from the negligence. 8 considerable force and violence, throwing the worker against the side of the engine and its beams—injuring the worker’s back. As it turns out, the plaintiff, unbeknownst to him and the world, had a latent defect in his spine called spondylolisthesis. 10 One with spondylolisthesis may go for years withstanding considerable strain, and then suddenly, for no assignable reason, sustain serious injury from a relatively light trauma. In Thompson, the trial defendant argued that “since the defendant is entitled to assume that his employees are able-bodied, he could not foresee that the acts, which the jury found to be negligent, would cause any injury.” 11 Rejecting the tortfeasor’s argument, the court held that “if a latent con‘‘ The Collins case was truly a watershed case and proved to hold fast to the traditions of English common law that a tortfeasor takes his victim as he finds her.”
dition plus an injury caused such pain, the injury, and not the latent condition, is the proximate cause.” 12 The Thompson case has later been cited as authority by the Texas Supreme Court, so it bears noting this case holds solid precedential authority statewide. 13 In another important case, the Supreme Court of Texas took up a mandamus in a case where the plaintiff claimed ordinary mental anguish after suffering physical injuries sustained while using an oven cleaning spray. 14 The defendant had convinced the trial court to allow for a compulsory mental examination of plaintiff, claiming that the plaintiff’s mental anguish was pre-existing and may have contributed to the incident with the oven cleaner. The plaintiff sought a writ of mandamus to prohibit the mental examination requirement. The appellate court denied the mandamus, and the case went up on appeal. The Texas Supreme Court held that, regardless of Ms. Coates’s personal problems at the time of the incident
The Collins case was truly a watershed case and proved to hold fast to the traditions of English common law that a tortfeasor takes his victim as he finds her. Apparently, the lower court was tempted into finding a lack of proximate cause due to lack of foreseeability or anticipation of the particulars of the individual victim. Collins appears to be the closest Texas ever got to straying from the thinskulled plaintiff rule.
Fast-forward to 1956, when the Court of Civil Appeals of Galveston heard the Thompson v. Quarles case. 9 In Thompson, the plaintiff was working on a diesel locomotive engine, and as he was jacking over the engine, a switch engine hooked onto the diesel engine on one end with
with the oven cleaner, she was entitled to recover the damages resulting from the incident “conditioned as [she] was at the time of the injury.” 15 The Court further reasoned that the fact that Mrs. Coates had personal problems at the time of her injury does not, in itself, relieve the tortfeasor of liability. 16 This case was of great importance in Texas because had the Court not granted this writ of mandamus, every Texas personal injury plaintiff claiming mental anguish after Coates would have been subjected to tortfeasors’ demands for compulsory mental examinations.
The most recent important case is Katy Springs & Manufacturing Inc. v. Favalora. 17 The Katy Springs plaintiff, Favalora, fell after being hit in the chest by escaping wire when a bundle of large-gauge wire used to make springs jammed in a payoff reel that was fabricated by Katy Springs. Following this accident, Favalora endured long-term chronic neck pain and numbness in his arm. Favalora had a previous fusion of C4-5 vertebrae after a car accident, and it took him a long time to recover; however, the evidence established that he had in fact recovered, and was able to work out, exercise, teach swim lessons, play volleyball, and engage in heavy lifting at work, all essentially pain free. Repeating previous courts’ holdings that a tortfeasor takes a plaintiff as he finds him, the court fur
ther held that if a latent condition does not cause pain or suffering, but that condition plus an injury caused such pain, then the injury, and not the latent condition, is the proximate cause. 18 The eggshell plaintiff doctrine is unique in that unforeseeability is the key element of recovery against the tortfeasor. It is somewhat of an oxymoron to our legal brains considering how the general Palsgraf foreseeability requirement of proximate cause is pounded into our heads beginning the first year of law school. So, the next time that insurance adjuster essentially tells you your plaintiff was already broken, and they are not paying, send him/her these five cases. The De ense Pers ective Y es, every first-year law student learns about the “eggshell plaintiff doctrine” in his or her Torts class, and while my colleague argues this doctrine is ironclad, it is not as cut and dry as many attorneys believe. It is certainly true that under Texas personal injury law, individuals who cause injury due to their negligence are responsible for their victim’s injuries— even those that are unexpected or unforeseen. However, those defending such claims should take into c o n s i d e r a t i o n various scenarios in which the negligent party may not be wholly liable for the injuries.
For instance, was there an event after the original accident that aggravated the claimant’s initial injury or did the claimant fail to treat the condition properly prior to the event? Such questions need to be addressed, and most Plaintiff’s counsel are opposed to the discovery of such information. It is important to note that an intervening or superseding cause is an event that happens after the accident complained of and causes additional injury to the claimant or aggravates the claimant’s initial injury from the accident. The Texas Supreme Court has expressed that “proximate cause” is a legal term with a fixed and long-established legal meaning. 19 The word in the term which necessitates that it be defined so as to convert it into language employing words of ordinary meaning is the word “proximate.” 20 “The question always is, Was there an unbroken connection?... Or was there some new and independent cause intervening between the wrong and the injury?” 21 “New and independent cause” is likewise a term of fixed legal meaning that must be defined. 22 Again, it is not the word “cause” that necessitates a definition of the term; it is the words “new and independent.” 23 In other words, there are two kinds of causes to be considered by the jury when there is evidence that negligent acts other than the alleged negligent acts of the parties were responsible for the injury. It is necessary that they be translated by definition into words of such ordinary meaning, and so differentiated, as to enable the jury to properly pass upon the issues. 24 This is because the person responsible for the event complained of is not liable ‘‘ If there is one thing we all have learned during our years of practicing law: there are shades of gray and nuances to all aspects of a case, leaving us always with arguments to be made.”
for the injuries caused by the intervening or superseding cause because the injuries would not have been foreseeable. Both arguments above come to light in Allstate v. Jordan. 25 In this case, Jordan had several pre-existing conditions. In 1983, she had surgery on the lumbar area of her spine, and she was depressed, experienced anxiety, had chronic pain, and headaches. Prior to the August 5, 2010 accident, Jordan had scheduled an appointment for September 13, 2010, at the Scott & White Clinic to be treated for her depression. When the accident happened on August 5, Jordan testified that she felt a burning sensation in her neck upon impact but declined medical treatment at the scene. Following the accident, she was driven to Scott & White to see her family doctor where she complained of pain in her neck and shoulders and minimal pain across her chest. The treating physician noted Jordan had normal range of motion in her neck, no head injury or injury to her arms, and “no significant distress,” and concluded that she was suffering from whiplash. 26 On August 31, 2010, it was noted that, although Jordan had some pain on turning her head to the right, she had good range of motion and no weakness in her upper extremities and was instructed to continue with chiropractic treatment, antiinflammatory medication, and muscle relaxers, although there was testimony she was not taking the prescribed medication. 27 On September 14, 2010, Jordan was in her garden when she tripped over a brick and landed on another brick, breaking her nose in three places. Jordan claimed that she fell because she was dizzy from the medication that had been prescribed for the injuries she sustained as a result of the accident. Between the date of the accident and the time of trial, Jordan visited several doctors and received medical treatment for a variety of symptoms. Essentially, her medical treatment after the accident revealed that she suffered a
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whiplash injury and was improving with good range of motion and no weakness in her upper extremities prior to her intervening fall in her garden. After her fall, she continued to report problems similar to those received in the accident, namely, chronic neck pain, headaches, memory problems, dizziness, problems sleeping, depression, and numbness and tingling in her arms and fingers. At times, the records indicated that her conditions were improving, and at other times, they indicated that her conditions were worsening. Jordan related all of the problems to the accident, and Allstate attributed the majority of the problems to the garden fall, which it believed was an intervening and superseding cause. 28 The trial court entered judgment on the jury verdict, awarding $30,000 for past medical expenses, but nothing for past physical pain. On appeal, the Texarkana Court of Appeals determined the jury’s finding of no damages for Jordan’s past physical pain was not so against
the great weight and preponderance of evidence that it was clearly wrong and unjust, even though the jury awarded Jordan virtually all of her past medical expenses. This was because she had preexisting chronic pain and had scheduled an appointment prior to the accident to discuss depression resulting from losses sustained before the accident. “[W]hen there is conflicting evidence of the injury’s cause or an alternative explanation for the injured party’s reported pain, appellate courts have upheld zero damage findings for physical pain despite the jury finding that the injured party is entitled to damages for medical expenses.” 29 The jury in this case heard that Jordan had mild disc degeneration throughout the cervical spine that could have been the result of normal aging and that Jordan’s injuries could have been the result of the hard fall she sustained five weeks and a few days after the accident. Her treating physician wrote, “Ms. Jordan has a preexisting mild left lateral curvature... of the thoracic spine that is not the result of this injury; however, the changes in joint biomechanics increased the susceptibility of that area to more damage with less trauma.” 30 Accordingly, the jury could have concluded that the injuries that were not documented before Jordan’s fall were attributable to the fall.
She was also not taking the prescribed medication after the accident. As such, the Court of Appeals concluded the jury could have determined that she was not suffering from neck, arm, and shoulder pain as a result of the accident, as her pain was not so serious as to require compensation, therefore making the jury unable to separate any whiplash injury from her pre-existing condition. 31 If there is one thing we all have learned during our years of practicing law: there are shades of gray and nuances to all aspects of a case, leaving us always with arguments to be made. Break your case into three parts, the prior condition, the recovery period (if any), and any subsequent injury. Ask yourselves, did the prior medical symptoms and suffering subside? Did the claimant continue with the medical treatment during recovery? Was the claimant’s ability to work affected during the recovery period? Finally, what about the claimant’s current condition? Is it different from the prior condition or does it differ in degree? Discovery is essential.
Troy M. Moore is the managing attorney for the Law Office of Troy M. Moore, PLLC in Northwest Houston. His practice focuses mainly on personal injury and probate law. Moore is a proud Aggie and graduate of South Texas College of Law. https://troymmoore.com Rebecca A. Moore is of counsel in the Houston office of Sheehy, Ware & Pappas, P.C. Her practice focuses mainly on casualty claims arising from allegations of construction defects, premises liability, personal injury and commercial litigation.
Endnotes 1. Coates v. Whittington, 758 S.W.2d 749, 752 (1988); see also Driess v. Friederick, 73 Tex. 460, 462, 11 S.W. 493, 494 (1889); Thompson v. Quarles, 297 S.W.2d 321 (Tex. Civ. App.—Galveston 1957, ref’d n.r.e.). 2. 73 Tex. 460, 11 S.W. 493. 3. Id. at 461. 4. Id. at 462. 5. Id. 6. 110 Tex. 577, 212 S.W. 477, 478 (1919). 7. Id. 8. Id. at 581–582. 9. 297 S.W.2d 321 (Tex. Civ. App.—Galveston 1956, writ refused n.r.e.). 10. Spondylolisthesis is when a vertebra slips out of place and pinches spinal nerves, usually in the lumbar spine.
11. Id. at 329. 12. Id. ( emphasis added). 13. Coates v. Whittington, 758 S.W.2d 749, 752-3 (Tex. 1988). 14. Id. at 750 15. Id. at 753. 16. Id. 1 7. 4 76 S.W.3d 579 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). 18. Id. at 592. 19. Southland Greyhound Lines, Inc. v. Cotton, 126 Tex. 596, 91 S.W. 2d 326, 328–29 (1936) (quoting Tex. & Pac. Ry. Co. v. Bingham, 90 Tex. 223, 38 S.W. 162, 164 (1896)). 20. Id. 2 1. Id. 2 2. Id. 2 3. Id. 2 4. Id. 25. 503 S.W.3d 450 (Tex. App.—Texarkana 2016, no pet.). 26. Id. at 458. 27. Id. 2 8. Id. at 458–59. 29.I n re State Farm Mut. Auto. Ins., 483 S.W.3d 249, 264 (Tex. App.—Fort Worth 2016, orig. proceeding) (citing Grant v. Cruz, 406 S.W.3d 358, 364 (Tex. App.—Dallas 2013, no pet.); Enright v. Goodman Distribution, Inc., 330 S.W.3d 392, 298 (Tex. App.— Houston [14th Dist.] 2010, no pet.); see also Lanier v. E. Founds, Inc., 401 S.W.3d 445, 455 (Tex. App.— Dallas 2013, no pet.); Hyler v. Boytor, 823 S.W.2d 425, 427–28 (Tex. App.—Houston [1st Dist.] 1992, no writ) (upholding zero damages for pain and suffering despite medical expenses award where jury heard evidence of other potential causes of plaintiff’s injuries). 30. 503 S.W.3d at 462. 31. Id. a t 463.
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