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By Troy M. Moore (Plaintiff Perspective) and Rebecca A. Moore (Defense Perspective)

The Eggshell Plaintiff Rule:

Opposing Perspectives


The Plaintiff Perspective 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

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