Representing Eggshell Plaintiffs and Others with Preexisting Conditions or Injuries Post Lovely
Written by Steven Silin, Retired
It is a maxim that a tort defendant takes his victim as he finds him. Called the “eggshell plaintiff” rule, this theory makes a defendant responsible for all damages resulting from his negligence, “even though, because of the plaintiff’s preexisting frailty of health, they proved to be more severe than they would have been in a normal person.”1 Although the theory is well-established in Maine and elsewhere, questions remain concerning its application in certain types of cases.
The recent Law Court decision in Lovely v. Allstate Ins. Co.,2 particularly the concurring opinion of Justice Lipez, represents a significant step towards bridging the gap between theory and practice incases involving preexisting conditions or injuries. By exploring Lovely and other pertinent Law Court decisions and proposing revisions to the standard jury instructions, this article attempts to facilitate a further closing of the gap between legal theory and workable rules for the courtroom.
A. Packard v. Whitten and the Traditional “Eggshell Plaintiff” Rule
The blurring of important distinctions between preexisting conditions and preexisting injuries makes it difficult to distill legal principles from existing case law.3
This problem is exacerbated by the Law Court’s practice of applying the eggshell plaintiff rule without further explication or analysis. For example, in Packard v. Whitten4 the Law Court invoked the eggshell plaintiff rule in discussing plaintiff’s preexisting psychological and physical afflictions but failed to explain the practical effects of the rule.
In Packard, the plaintiff suffered a car accident, after which her already extremely delicate health “deteriorated steadily.”5 The Court upheld the verdict, stating “[t]he jury could have properly concluded that [plaintiff’s] present physical and nervous afflictions are of the same general nature as those which affected her before the collision but that now they are much worse.”6
In so holding, the Court characterized the “eggshell plaintiff” rule as follows: a Defendant takes a Plaintiff as he finds her and is responsible for her damages resulting from his negligent conduct even though because of the Plaintiff’s preexisting frailty of health they proved to be more severe than they would have been in a normal person.7
The Packard Court did not address whether the defendant was liable only for the worsening of the plaintiff’s preexisting condition.8 The rule that a defendant “takes a plaintiff as he finds her” answers the query whether a defendant may be held liable for the plaintiff’s injuries “even though …they proved to be more severe than they would have been in a normal person.”9 The more difficult question – and the one addressed, finally, in Lovely – is whether a defendant may be held liable for all of a plaintiff’s unhealthiness in cases involving exacerbation of a preexisting condition.10 It follows from the doctrine of proximate cause that, where apportionment is possible, only the portion of pain and suffering which is attributable to the defendant’s negligence is compensable. In certain cases, however, the harm is simply not susceptible to apportionment. For example, where plaintiff’s preexisting condition was asymptomatic, becoming symptomatic only after the trauma inflicted by defendant’s negligence, any attempt to apportion damages would vitiate the eggshell plaintiff rule. If a defendant truly “takes his plaintiff as he finds her,” the plaintiff in such a case should recover for the full extent of her injuries.
B. Lovely v. Allstate Ins. Co. and the Further Elucidation of the “Eggshell Plaintiff” Rule
The Law Court resolved some, though not all, of these issues in Lovely v. Allstate Insurance Co.11 In Lovely, the plaintiff suffered from a preexisting injury which was exacerbated by a subsequent accident. The defendant successfully argued to the trial court that, in order to recover, the plaintiff had the burden of demonstrating which portion of his injury resulted from each accident. After reviewing the evidence, the trial court, sitting as fact finder, determined that the medical testimony failed to provide a basis for apportioning the damages as between the two incidents. Although the record contained substantial evidence of pain and suffering, as well as medical expenses attributable to plaintiff’s elbow injury, the trial court declined to award any damages based on this injury, finding that plaintiff failed to meet his burden of proof.12
The Law Court reversed on the ground that the trial court had erroneously placed the burden of proof as to apportionment on the plaintiff. Rather than awarding no damages for the elbow injury, the Law Court ruled that the trial court should have awarded plaintiff his total damages. In so holding, the Court actually invoked not the eggshell-plaintiff rule, but rather the single-injury rule, traditionally applied in cases involving multiple tortfeasors.13 Noting that the single-injury rule “places any hardship resulting from the difficulty of apportionment on the proven wrongdoer and not on the innocent plaintiff,”14 the Court extended the application of the rule to cases involving preexisting conditions.15 Accordingly, the Court held that where a preexisting condition is exacerbated by a negligent act, resulting in an aggregate injury which is incapable of apportionment, the wrongdoer and not the victim must suffer the hardship of proving apportionment.16
Although Lovely deserves to be heralded by the plaintiff’s bar as an important and valuable ruling, it must also be noted that the decision raises certain questions as it resolves others. Fortunately, some of these uncertainties are addressed in Justice Lipez’ concurrence. For example, the concurring opinion notes that the plaintiff does not have an additional threshold burden of proving the injury incapable of apportionment before the burden of proof shifts to the defendant. Rather, the plaintiff simply has the usual burden of establishing causation between the incident and his damages. Once the plaintiff has met that burden, according to Justice Lipez, the defendant who seeks to limit liability on the basis of a preexisting or subsequent injury has the same burden of proof as a defendant asserting the affirmative defenses of comparative negligence or failure to mitigate damages.17 Such a rule makes sense, because it reaffirms the principle of proximate causation, while, at the same time, implementing the policy choice that, as between an innocent plaintiff and a tortfeasor, the law should place the hardship of apportionment on the wrongdoer.
Another significant contribution of the concurring opinion is its recognition of the conceptual tension between preexisting conditions and preexisting injuries. As noted in the concurrence, a fact pattern involving a congenital condition, such as the quintessential eggshell-thin skull, is conceptually distinct from a situation involving a preexisting injury that is subsequently exacerbated in a second accident. In the thin-skull plaintiff, where the person suffers unusually extensive head injuries in an accident, there is no problem of apportionment between preexisting pain and new pain, because the pain is all new. The preexisting-injury scenario, however, raises the question whether and how the damages should be apportioned between the two incidents. In the middle exists a gray area where the congenital condition is symptomatic prior to the accident but becomes acutely more symptomatic following the accident. Maine law has long recognized the quintessential eggshell plaintiff’s entitlement to full recovery. Without mentioning the standard eggshell rule or remarking on the conceptual differences among the types of cases the Court in Lovely recognized a rule of law embracing the scenarios not addressed by the standard eggshell doctrine. By directly confronting the conceptual distinctions among cases, the concurrence helps to place Lovely in context, making its import more clear.
C. Jury Instructions
Perhaps the most important contribution of the concurrence, however, is its long and insightful footnote proposing revisions to the standard jury instructions consistent with Lovely.18
The task of modifying Maine’s standard jury instructions on this issue is easier than it may appear at first blush. Lovely does not, for example, affect the vitality of the standard “Eggshell Plaintiff” instruction. See Alexander, Honorable Donald G., Maine Jury Instructions Issue 4 (1994) [hereinafter “Alexander”], Instruction #152, which provides in full:
Damages: Fragile Condition
If you should find that at the time of the incident the plaintiff had a bodily condition which made her more susceptible to injury than a person in good health, the defendant is responsible for all injuries suffered by plaintiff as a result of defendant’s negligence, even if those injuries are greater than would have been suffered by a person in good health under the same circumstances.
Justice Lipez, in his concurrence, quotes a different version of the instruction, which tacks on to the pure eggshell rule quoted above the legal principles governing exacerbation of a preexisting injury.19 In order to avoid confusion, it may be preferable to treat the concepts of “Fragile Condition” and “Aggravation of Preexisting Injury” separately. Thus, in a case involving a quintessential eggshell plaintiff, Alexander’s “Fragile Condition” instruction should be given. For cases outside the classic “eggshell” mode, however, the jury should receive a differently tailored instruction, such as the following:
Damages: Aggravation of Preexisting Injury
If you find that plaintiff, prior to the incident, had a particular pre-existing injury, and if you find that defendant negligently caused further injury or aggravation to plaintiff’s pre-existing injury, plaintiff is, nevertheless, entitled to full compensation for all of plaintiff’s damages caused by the incident. If you find that any pre-existing problem worsened independently of the incident, or that plaintiff suffered further problems that did not result from the incident, the defendant is not responsible for such further worsening or problems. However, the defendant bears the burden of proving by a preponderance of the evidence that some or all of the plaintiff’s damages are attributable to causes independent of the accident. If you find that defendant has failed to meet this burden, then plaintiff is entitled to full compensation for all of her damages associated with her condition. Similarly, if plaintiff’s injury is such that her problems cannot be divided or apportioned between preexisting problems and those problems that the incident caused, then plaintiff is entitled to full compensation for all of her damages associated with her condition.
Moreover, as Justice Lipez notes, the standard “Independent Events” instruction improperly suggests that the plaintiff has the burden of apportionment. Alexander’s Instruction #151 provides:
Damages: Other Events
Where there have been events affecting the plaintiff’s condition or losses, either before or after the incident which gave rise to this trial, you must separate out damages attributable to those prior or subsequent events, and award the plaintiff only those damages which you find to have been proximately caused by the defendant’s fault.
Read in conjunction with the standard “Proximate Cause” instruction, which places the burden of proving proximate cause on the plaintiff, the above charge is inconsistent with Lovely, and can no longer be considered good law in cases involving preexisting injury.20
D. Preexisting Emotional Injury
Lastly, it should be noted that the “Aggravation” and “Fragile Condition” instructions contemplate bodily injury. Where the preexisting injury or condition alleged is emotional or psychological in nature, the legal principles under Maine law are governed by Therriault v. Swan, in which the Law Court recognized a special “eggshell psyche” rule.21 Accordingly, a special “Fragile Condition” instruction should be used for cases involving claims for emotional distress setting forth the rule adopted in Therriault.22
The sparse facts set forth in the Therriault case report simply that the plaintiff suffered severe emotional distress when the defendant’s car crashed within inches of her home. The theory asserted by the defendant sought to establish that some of plaintiff’s psychological symptoms were caused by her employment status and not by the incident.
The plaintiff in Therriault argued that the jury inconsistently awarded damages for reckless infliction of emotional distress but not for negligent infliction of emotional distress.23 In upholding the verdict, the Court stated that in order to recover for either negligent or reckless infliction of emotional distress, a plaintiff must show that the harm alleged “reasonably could have been expected to befall the ordinarily sensitive person.”24 Significantly, the Court added:
When the harm reasonably could affect only the hurt feelings of the super sensitive plaintiff – the eggshell psyche – there is no entitlement to recovery.25 If, however, the harm reasonably could have been expected to befall the ordinarily sensitive person, the tortfeasor must take his victim as he finds her, extraordinarily sensitive or not.26
As is often the case with recitations of legal principles, Therriault’s language, although it appears straightforward on first blush, raises questions when applied to real-life fact patterns. For example, Therriault’s rule for recovery is more restrictive than the usual bodily injury eggshell plaintiff rule. It appears, however, that the restrictions on recovery by “super sensitive” plaintiffs arise from the Gammon line of emotional distress cases. Since those cases concern emotional distress which is neither accompanied by physical injury nor manifested in physical symptoms, arguably27 a plaintiff with an eggshell psyche whose psychological afflictions are accompanied by physical symptomology would be entitled to recover notwithstanding Therriault’s limitations.28
In cases lacking a physical harm component, however, Therriault’s “objective test” threshold must be met before the rule requiring the tortfeasor to “take his victim as he finds her extraordinarily sensitive or not,” is activated. This complicates the analysis affecting eggshell psyches and makes representing them particularly challenging. The potential rewards, however, are great, since, once the threshold is met, the eggshell plaintiff rule opens the door to recovery of the enhanced damages suffered by the “extraordinarily sensitive” plaintiff.
The possibility of increased damage awards in cases involving preexisting conditions cannot be overstated, particularly in light of the Lovely decision. There are now two doctrines – the eggshell plaintiff rule, and the single injury rule – available to plaintiffs in order to substantiate claims of enhanced damages. Tort attorneys who underestimate the power of these doctrines will severely undervalue their clients’ cases. It is a misconception that a preexisting condition constitutes a detrimental, rather than a value-adding, factor, since, far from diminishing the value of a case, the presence of a preexisting condition has the power to increase a damage award commensurate with the enhancement of suffering endured. This is particularly true, given the Lovely decision, since it is now clear that the defendant, and not the plaintiff, has the burden of proof as to whether and how the damages must be apportioned.
Lovely is sure to be followed by other Law Court pronouncements on the subject. Maine law regarding preexisting conditions, particularly those involving psychological or emotional problems, is still far from clear. What is clear, however, is that the eggshell plaintiff, eggshell-psyche and single-injury rules hold great promise for injured persons, but their theoretical advantages need first be translated into practice. The most important point for practitioners at this juncture is to gain a sound sense of how a client’s preexisting condition can be strategically utilized to achieve the pro-claimant result contemplated by the doctrines. By focusing on the functional limitations the client has experienced from the time of the incident and the manner in which they have restricted his life’s enjoyments, the practitioner should ensure that his client obtains a recovery commensurate with his increased suffering.
- See Packard v. Whitten, 274 A.2d 169, 177-78 (Me. 1971) (citing 22 Am. Jur. 2d, Damages 122; Prosser, Law of Torts, p. 300 (3d ed. 1964)).
- Lovely v. Allstate Ins. Co., No. 7274 (Me. May 30, 1995).
- As Justice Lipez noted in his concurrence in Lovely, many cases diverge from the quintessential eggshell plaintiff fact pattern, where a person with a congenitally thin skull suffers unusually extensive head injuries in an accident. In such a case there is no problem of apportionment between preexisting pain and new pain, because the pain is all new. Where, however, a person with a chronically painful back due to a previous back injury, for example, is subsequently involved in an accident which exacerbates his pain, a question arises as to whether and how the damages should be apportioned. Lovely v. Allstate Ins. Co. No. 7274, slip op. at 2 n. 1 (Lipez, J., concurring) (Me. May 30, 1995).
- Packard v. Whitten, 274 A.2d 169 (Me. 1971).
- Packard, 274 A.2d at 177.
- Id. at 177-78 (citing 22 Am. Jur. 2d, Damages § 122; Prosser, Law of Torts, p. 300 (3d ed. 1964)).
- Compare, for example, Werner v. Lane, 393 A.2d 1329, 1331 (Me. 1978), in which the plaintiff apparently did not invoke the eggshell plaintiff rule, but simply claimed damages limited to aggravation of a previous psychiatric disorder. See also American Motorists Ins. Co. v. American Rent-All, Inc., 566 So. 2d 121 (La. 1990) (plaintiff with long-standing psychiatric dysfunction entitled only to damages for aggravation of condition caused by accident), and other cases cited in J.P. Ludington, Annotation, Sufficiency of Proof that Mental or Neurological Condition Complained of Resulted from Accident or Incident in Suit Rather than From Preexisting Condition, 2 A.L.R. 3d 487 (1965).
- Packard, 274 A.2d at 177-78.
- Of course, where a plaintiff’s injuries are attributable to a preexisting condition which is not aggravated by defendant’s negligence, such injuries are not compensable. See, e.g., Arel v. Poirier, 533 A.2d 1285 (Me. 1987); McLellan v. Morrison, 434 A.2d 28, 30-31 (Me. 1981); Gentle v. Jewell, 161 Me. 503, 504 (l965); Cookson v. H.B. Barnes Co., 12 Me. 527, 530 (1921). Thus, if a defendant can show that the plaintiff’s symptoms are attributable to a preexisting condition which was not at all aggravated by his negligence, recovery for those symptoms will be precluded.
- Lovely v. Allstate Ins. Co., No. 7274 (Me. May 30, 1995).
- Damages were awarded for a knee injury as to which the issue of causation was not in dispute.
- Traditionally, the single-injury rule has been invoked as a means of imposing joint and several liability where the separate and independent negligence of two or more persons combines to directly cause a single injury which is incapable of apportionment. See, e.g., Paine v. Spottiswoode, 612 A.2d, 235, 240 (Me. 1992); Roberts v. American Chaut & Cable Co., 259 A.2d 43, 50 (Me. 1969); Josselyn v. Dearborn, 143 Me. 328, 342, 62 A.2d 174, 182. (1948). See also Restatement (Second) of Torts § 433B. Lovely further expands this doctrine.
- Lovely, slip op. at 4.
- The Law Court’s ruling is in accord with the Restatement (Second) of Torts § 433, a provision cited, but not discussed, in Lovely.
- Lovely, slip op. at 4.
- Lovely, slip op. at 3 (Lipez, J., concurring).
- See Lovely, slip op. at 1, 2 n. 1 (Lipez, J., concurring) (noting inconsistencies in standard jury instructions).
- See Lovely, slip op. at 2 n. 1 (Lipez, J., concurring).
- Lovely, No. 7274, slip op. at 1, 2 n. 1 (Lipez, J., concurring).
- Therriault v. Swan, 558 A.2d 369 (Me. 1989).
- Noting that emotional “eggshell” cases warrant a specially tailored instruction, Justice Alexander has proposed the following, which accurately reflects Maine law subject to the caveat noted in footnote 27 of this article: “Eggshell” Emotion Instruction If you find that the plaintiff suffered severe emotional distress proximately caused by the defendant’s negligence, and if you find that it was reasonably foreseeable that a person of normal sensitivities would suffer severe emotional distress under the circumstances, then you should award damages that will fairly and justly compensate the plaintiff for the full extent of her emotional distress, even if the plaintiff’s emotional distress was greater than the distress which would have been suffered by a person of normal sensitivities. See Me. Jury Instructions Issue 2 (1992) at 7-33. In cases involving prior psychological injury where apportionment may be at issue, this instruction may need to be given in conjunction with the burden-shifting and apportionment principles embodied in the Aggravation of a Preexisting Injury instruction proposed infra at n. 15.
- The Court concluded that, “even assuming the verdicts in the case at bar are inconsistent, the plaintiffs have demonstrated no harm because the damages sought are identical under both torts.” Id. at 372.
- Id. at 372 (citing Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282, 1285 (Me. 1987)).
- Id. (citing Gammon, 534 A.2d at 1285).
- Id. (citing Restatement (Second) of Torts § 461 (1975)). Section 461 of the Restatement (Second) of Torts provides: Harm Increased in Extent by Other’s Unforeseeable Physical Condition. The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct. It follows from general tort principles, if not from the grammatical structure of § 461, that an actor is also responsible for the full extent of plaintiff’s harm where plaintiff has a physical condition which is known to the actor.
- Accordingly, until the Law Court resolves this uncertainty, in a case involving emotional distress accompanied by physical symptomology arguably Alexander’s Instruction #152 (the standard “Fragile Condition” instruction), rather than the more restrictive proposed “Eggshell Emotion” instruction, constitutes the more appropriate charge, provided that the former is modified to address the issue of emotional distress.
- The Law Court has long distinguished emotional distress which is accompanied by physical injury or which is manifested by physical symptomology from suffering which is wholly mental or emotional. See, e.g., Vicnire v. Ford Motor Credit Co., 401 A.2d 148 (Me. 1979).