Monday, July 22, 2019

The April 2016 issue of Plaintiff, described the role of experts when dealing with eggshell skull plaintiffs.


The eggshell skull plaintiff is a tort victim more susceptible to injury than the common person. The defendant does not escape liability because of the plaintiff’s pre-existing fragility.


An eggshell skull plaintiff has a pre-existing impairments that gets aggravated by the defendant’s tort, whether intentional, negligent, or strict. When dealing with an eggshell plaintiff, the attorney persuades the fact finder to find the defendant was the proximate cause or substantial contributing factor to the plaintiff’s harm.


At the beginning, the plaintiff pleads a pre-existing medical condition that made him/her susceptible to injury. It is necessary to distinguish between aggravated injury caused by the defendant’s conduct and illness the plaintiff suffers regardless of the defendant’s acts. To do this, experts explain the causation between the normal injury that may occur compared to the aggravation of a plaintiff ’s pre-existing condition.


The expert is an independent physician, forensic psychiatrist, or psychologist who looks over documentary evidence about a plaintiff. The documents include treatment notes, medical records, employment files, deposition transcripts, and psychological tests. The medical expert witness assesses factors that may cause or contribute to aggravating a plaintiff ’s physical conditions and mental disorders.


The expert, rather than the plaintiff’s attorney, should be the person to provide the jury with a reason for additional damages caused by pre-existing factors. Jury instructions must repeat to the jury that the defendant is liable for the aggravation of a pre-existing fragility.


In California, jury instructions compel the jury to consider the susceptibility of an eggshell plaintiff, and find a defendant liable for additional damages. CACI 3927, Aggravation of Preexisting Condition or Disability, requires the jury to find the defendant liable if conduct aggravated the plaintiff ’s condition. CACI 3928, Unusually Susceptible Plaintiff, states that although an eggshell plaintiff may suffer more damage than a healthy person, s/he must receive damages that compensate for damages the defendant caused.