Eggshell. The word comes from the law school example of a man with a skull as thin as an eggshell, who dies from a blow that would have bruised anyone else, and the rule the example teaches is the one an adjuster hopes you have never heard: the person who hurt you takes you as he finds you. A fragile body is not a defense. It is the body the law protects.
The rule. The Texas Supreme Court has stated it in one line: “It is well settled that a tortfeasor takes a plaintiff as he finds him” (Coates v. Whittington). The case was a woman badly burned and scarred by an oven cleaner. The company that made it wanted a court-ordered mental examination, pointing to the depression she had before the injury and suggesting it might explain how she came to be burned, and the court said no: her earlier troubles were peripheral, they did not by themselves relieve the company of anything, and she was entitled to recover for the injury done to her “conditioned as [she] was at the time of the injury.” That is the whole doctrine. The defendant does not get a discount because the person he hurt was older, weaker, already sore, already sad, or already carrying a condition that made the injury worse than it would have been in someone else.
What it covers. Two things, which the defense likes to blur. The first is the injury that is worse because of who you were: the bone that broke because it was already thin, the concussion that lasted months because of the one before it, which is what Fog is about. The second is aggravation, the condition you already had that the crash made worse. A Houston court of appeals upheld, over the defense’s objection, a jury charge that defined injury to include “the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing,” and said the definition “correctly states the law” (Weidner v. Sanchez). The back that ached once a month and now aches every day is an injury, and the measure is the difference between the person before and the person after.
What the MRI does not prove. The defense’s favorite word is degenerative. It appears in the radiologist’s report, and the letter that follows says the pain was there before the crash because the disc was. The science says the word proves almost nothing. A review of 33 imaging studies of the lower back in 3,110 people with no history of back pain found disk degeneration in 37 percent of twenty-year-olds and 96 percent of eighty-year-olds, and a bulging disk in 30 percent of the twenty-year-olds and 84 percent of the eighty-year-olds; the authors concluded that many of these findings “are likely part of normal aging and unassociated with pain” (Brinjikji et al.). A worn disc on a scan is the ordinary condition of an adult spine. What it does, in a crash, is make that spine the one the force finds, which is the point the roller-coaster study in Airtime makes from the other direction: there is “no established minimum threshold” of force for a significant spine injury, and the largest factor is “individual susceptibility” (Freeman et al.). A person with a worn disc who was fine before the crash and not after is not a weak case. He is the rule’s own example.
The edge. The rule changes the measure of the damages; it does not move the burden of proof. The injured person still has to prove that the crash caused the injury, with a doctor where the question is medical, and where the record shows another plausible cause, to exclude it with reasonable certainty. The Texas Supreme Court said so in a case with two crashes about three months apart: the woman who sued over the first one had to prove it caused her herniated discs, and the trucking company was entitled to put the second crash in front of the jury, because the burden of proving causation was hers and not theirs (JLG Trucking v. Garza). So the eggshell rule is not a reason to be vague about the before. It is the reason to be exact about it.
The move. Build the before. The old records, the chiropractor’s notes, the gym log, the work attendance, the photographs, the people who knew the body before the crash, because the measure is the difference and the defense will argue there was none. Get the first doctor to write aggravation when that is what it was, not chronic, which is the defense’s word in a treating physician’s hand. Ask the expert to separate what the crash did from what age did, and to say the words the rule requires, that this crash, acting on this body, caused this harm, which is what Proximate Cause and Expert are for. And refuse the discount. The question is never whether a stronger person would have walked away. It is what happened to the one who was there.
The person who hurt you takes you as he finds you. The law does not ask whether you were easy to hurt. It asks who hurt you, and what it cost.
The rule: Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988); Weidner v. Sanchez, No. 14-98-00078-CV (Tex. App. Houston [14th Dist.] Feb. 17, 2000) (the charge definition of injury, including aggravation of a condition previously or subsequently existing); JLG Trucking, LLC v. Garza, 466 S.W.3d 157 (Tex. 2015) (the plaintiff’s burden to prove causation and to exclude other plausible causes supported by the record; the second accident admissible). The science: Brinjikji et al., Systematic Literature Review of Imaging Features of Spinal Degeneration in Asymptomatic Populations, American Journal of Neuroradiology 36:811 to 816 (2015) (33 studies, 3,110 asymptomatic people); Freeman et al., Significant spinal injury resulting from low-level accelerations, Archives of Physical Medicine and Rehabilitation 86:2126 to 2130 (2005). General information, not legal advice.
