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EGGSHELL OR THIN-SKULLED PLAINTIFF

Law students in their first year of torts are sure to hear of the curious terms, thin-skulled plaintiff or eggshell plaintiff. Essentially what it means is that if a plaintiff has a particular weakness or susceptibility and is hurt, the defendant, “must take the plaintiff as he/she finds him/her”. Thus if the injured party suffers more as a result of their weakness or susceptibility, the defendant, the party that is sued, bears the full cost of that injury. That little expression of “taking the plaintiff as you find him/her” means essentially that the eggshell plaintiff or thin-skulled plaintiff is entitled to the full measure of their damages even though they had a particular susceptibility. I never found the expression of “taking the plaintiff as you find him/her” to be all that clear; nonetheless, there is no mistaking the concept.

I was looking at a legal treatise on injury law the other day and I happened to come across the following sentence: “A’s bad luck of bumping the one individual vulnerable enough to suffer serious injury does not protect A from liability.” And that is the basis, the standard, we have followed in law. It is very much, of course, a part of the Massachusetts tort system or Massachusetts law. Textbooks for law students are full of the most unusual evolutions of injuries and all to show that the most unfortunate medical progression and result is to be fully compensated. Thus, a sprained ankle caused by defendant’s negligence that results in death from a heart inflammation will mean that the death, not just the sprained ankle, is to be compensated. And so on. Just because a person is more susceptible to suffering than the average person does not preclude their full monetary recovery. Understanding Torts, Diamond, et. al. LexisNexis. Second Edition, 2000. Under a strict legal interpretation, clients in those unfortunate circumstances should feel that they will get the full measure of their damages regardless of any personal problem, i.e. weakness. All jurisdictions follow this rule of law and “the fact that [a defendant] could not have reasonably anticipated the particular result that followed…is also immaterial.” Keegan v. Minneapolis R.R. Co., 78 N.W. 965 (Minn. 1899). You can see by the date of the case just cited that we have followed this law for centuries.

Now this should not be lumped together and confused with what we have often talked about and that is pre-existing condition. The law pertaining to pre-existing condition is used by insurance companies and their lawyers with great glee and fanfare. The doctrine holds that if the injury which is the focus of the lawsuit had been a problem -albeit in a more limited way- by a prior injury or condition, the defendant is only liable for the exacerbation or aggravation of that pre-existing condition. Of course there is a huge amount of dispute and a huge amount of contentiousness over what constitutes an exacerbation or an aggravation. But the black letter law setting out the measure of compensation is clear; it is to be only for the exacerbation/aggravation. Some defense lawyers, while acknowledging that the law affords a measure of recovery, will argue with the plaintiff’s lawyer that the case will be viewed with skepticism if it were to be tried. Anecdotal evidence from trials has shown that juries are more understanding and are not so apt to rule out damages because of a hint of a pre-existing situation. Those who practiced defense law many decades ago were used to a different climate. I prefer to think of society today as kinder and gentler, and somewhat realistic that it is hard to go through life free from ailments and conditions.

I will also point out that sometimes we are dealing with a situation that was asymptomatic or dormant, something that was not giving the person any problem. As a result of the accident, however, it gets triggered and becomes symptomatic. In those cases, the plaintiff should get the full compensation for the triggering of that condition. I strenuously argue that it is not a situation calling for a reduced measure of damages at all. That too is a very contentious point, but I feel that I have given an accurate statement of the law. The asymptomatic condition is different from the pre-existing condition but how it plays out once again depends on the facts and the presentation of the particular case.

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  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

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