Presenting an Eggshell-Plaintiff to the Jury
By S.J. Walker
An unusually susceptible plaintiff is someone a San Diego personal injury attorney or an attorney from anywhere in the country will have to encounter. The eggshell-plaintiff doctrine is a long-established principal and is now a universally accepted and widely applied doctrine in which every American jurisdiction awards eggshell-plaintiff’s damages. (Restatement (Third) of Torts: Liab. For Physical & Emotional Harm § 31, cmt. B, reporters’ note (2005) (“Every United States jurisdiction adheres to the thin-skull rule; more precisely, extensive research has failed to identify a single United States case disavowing the rule.”).) In California, the eggshell-plaintiff doctrine is described as: “[t]he tortfeasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability.” (Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471 (citations omitted).) This particular blog will explore ways to present a claim involving this doctrine in a way that will stick with a jury.
Knowing the law is the best way, and is likely the first place, to begin when examining a case. There are relevant CACI instructions that assist in discovering the law, especially when dealing with the eggshell-plaintiff doctrine. It is vital to understand what you need to prove at trial from the onset so you know what you’re building your case up to present.
Here are the relevant CACI instructions regarding the eggshell-plaintiff doctrine:
*3927. Aggravation of Preexisting Condition or Disability
[Name of plaintiff] is not entitled to damages for any physical or emotional condition
that [he/she] had before [name of defendant]’s conduct occurred. However, if [name of
plaintiff] had a physical or emotional condition that was made worse by [name of
defendant]’s wrongful conduct, you must award damages that will reasonably and fairly
compensate [him/her] for the effect on that condition.
This instruction is very helpful in presenting your case for an eggshell-plaintiff. Here, the latter half of the instruction following ‘however’ allows for damages resulting from a preexisting condition. For example, if someone had a bad back before they were in a car crash negligently caused by the other driver, they would not be able to recover from the bad back in itself. However, if the plaintiff with the bad back had been receiving treatment for his/her bad back and the back was beginning to heal, but the car crash set the plaintiff months back in his/or her treatment, the defendant would be liable for the car crash’s effect on the back. This particular instruction only requires the condition to be ‘made worse,’ so make sure you ask all treating doctors about the exacerbated condition (make sure you know the answer before depos and trial). Next, pin down the defense doctors and get them to concede there is a pre-existing condition, and then get them to say that it was made worse. Get other witnesses to talk about how the condition was made worse, such as friends, family, employment associates, and even the plaintiff. Show the condition was ‘made worse’ with this jury instruction in mind.
*3928. Unusually Susceptible Plaintiff
You must decide the full amount of money that will reasonably and fairly compensate
[name of plaintiff] for all damages caused by the wrongful conduct of [name of
defendant], even if [name of plaintiff] was more susceptible to injury than a normally
healthy person would have been, and even if a normally healthy person would not have
suffered similar injury.
This instruction is also extremely helpful. The jury “must decide” “all damages” “even if plaintiff was more susceptible to injury.” Thus, work up your case knowing that you need to prove that your client was more susceptible to this injury. Remember this can be both physical and emotional harm. Your focus should be with treating and expert doctor’s, however, as said above, friends and family may help here too.
The voir dire process is so important as a San Diego Personal Injury Attorney that it keeps coming up in many of these blogs and will continue to come up in some to come. The reason? The voir dire process can make or break your case. It is the first interaction you have with your jury, and you most definitely want to get them on your side. Therefore, there have been multiple tactics used to efficiently get the most out of your jury. By the time you get to trial, you should already have all your witnesses prepared to discuss the principals discussed in the jury instructions above, but during voir dire you need to address the concept of the eggshell plaintiff. You simply want to get them thinking about pre-existing problems as well as identify those who are ‘tort reformers’ and do not believe people with prior problems should be compensated.
From Opening Statement To Closing Argument:
By the time you reach expert testimony, you will have already done your opening statement. During your opening statement, you should have begun laying the groundwork for ‘made worse.’ Then, you may move on to expert testimony. Although it doesn’t have to be in this order, it is highly recommended that your client goes last. Expert testimony needs to address questions that specifically cover the pre-existing injury that is made worse. Next, you should present testimony from family members and friends to show how the pre-existing condition is exacerbated. Once you have laid the ground work with medical professionals, friends, and family, it will then be the clients turn to testify. A person who has suffered in the past is generally well received with the jury, so walk them through the entire process of their condition and the incident. By this time, hopefully the jury will be with you because jurors want to like and believe in a “survivor,” which likely should be exactly how you portray your client. Finally, it will be your turn to do a closing argument. Walk the jury through the key instructions with boards of these instructions. Emphasize the key terms and refer to that actual trial testimony that proved the point. If all goes well you might just be able to ask for a big number.