All defense counsel have at one time or another experienced the exhilaration that comes from discovering, as a result of a deep dive into a claimant’s prior medical records,  that (1) the serious personal injuries alleged by the plaintiff are in fact the result of an aggravation of a serious pre-existing disease or injury and (2) but for the pre-existing disease or injury the present disability and/or impairment claimed would not have resulted.  You advise the client of the gravity of the pre-existing disease or injury.   In response, the client asks defense counsel whether the disclosure of the pre-existing condition warrants downgrading the case’s exposure and, if so, by how much.

A word of caution is in order.  Defending against an “eggshell skull” plaintiff can be treacherous even for the most seasoned trial counsel.  Although jury instructions differ from jurisdiction to jurisdiction, the general rule is  that when a defendant’s wrongful act causes injury, he is fully liable for the resulting damage even though the injured plaintiff suffered from a preexisting condition that made the consequences of the wrongful act more severe than they would have been for a normal victim.  In short, the defendant takes the plaintiff as he finds him.

The challenges in defending against  an “eggshell skull” claim were in full view in Koch v. United States, 857 F.3d 267 (5th Cir. 2017), a maritime personal injury case brought pursuant to the Longshore and Harbor Workers’  Compensation Act in the Eastern District of Louisiana.  Ricky Koch, a 54-year-old foreman at Economy Iron Works suffered injury in 2012 as a result of falling down a dimly lit stairwell in the course of a routine inspection of a vessel owned by the United States Maritime Administration.  As a result of the injuries suffered in the fall, plaintiff alleged that he was unable to ever work again and Mr. and Mrs. Koch recovered $2.83 million dollars for medical expenses, lost wages, pain and suffering and loss of consortium.

The problem from the perspective of the ship owner was that Koch had an extensive prior medical history, which included a diagnosis of degenerative disc disease in 2002; multiple joint arthritis in 2004; generalized osteoarthritis and need for total knee replacement in 2005; progressive lower back pain and carpal tunnel syndrome in 2007; cervical spinal surgery in 2008; and needing total knee replacement surgery “in the worst way” in 2012.  After the accident aboard ship, plaintiff’s doctors determined that the fall had “exacerbated his preexisting osteoarthritic conditions and caused the urgent necessity for surgical bilateral knee replacements.”  Later surgeries for both the knee and back injuries led to further complications that resulted in Mr. Koch being unable to ever work again.  Should not these pre-existing conditions significantly reduce plaintiff’s recovery?

On appeal, the ship owner contended that it should be liable, under prevailing case law, “only for the additional harm or aggravation that he caused.”  Further, the ship owner argued, when a plaintiff suffers from “a preexisting condition that would inevitably worsen, a defendant causing subsequent injury is entitled to have the plaintiff’s damages discounted to reflect the proportion of damages that would have been suffered even in the absence of the subsequent injury.”  Indeed, why should the United States be liable for surgical knees that had needed “replacement surgery “in the worst way” prior to the the accident?  In rejecting these arguments, the Fifth Circuit observed that the defendant’s conduct had made the pre-existing condition more severe.  The appellate court accepted the trial court’s determination that the testimony of the plaintiff’s treating physician, that the accident onboard ship necessitated the plaintiff’s surgeries, was persuasive.

A good discussion of the case may be found in a recent article by James Brown, a Houston partner at the HFW law firm.  Brown observes that the plaintiff’s doctor is often unable to estimate what percentage of plaintiff’s condition pre-existed the on-board accident.  In those instances, defense counsel can argue in closing argument that if the doctor cannot determine how much of the condition was caused by the defendant, neither can the jury.  Consequently, under the court’s instruction,  you cannot award any damages.

In Koch, the trial court faulted defendant’s medical expert witness because it found that he had limited knowledge of plaintiff’s injuries.  Once the plaintiff establishes that the injuries claimed were proximately caused by the accident at issue, it then becomes the defendant’s burden to prove that the harm was caused, in large part, by the pre-existing injury. Clearly,  if the defendant is going to take on an “eggshell skull” plaintiff, it is incumbent for defense counsel to put on a more dramatic case of plaintiff’s pre-accident injuries than plaintiff’s counsel’s case concerning the post-accident injuries.  The gravity of plaintiff’s pre-accident condition should be brought home graphically.  Defense counsel must go on the offensive to diminish the value of plaintiff’s injuries in the eyes of the jury or the court and leave no doubt in anyone’s mind that this “egg” had already begun to crack prior to the accident.