5th Circuit affirms $2.83M award in eggshell skull 905(b) claim

by Matthew H. Ammerman on May 28th, 2017

You take your plaintiff as you find him. That is a general principle of tort law. The common example is a person with an eggshell skull who is in an accident and suffers brain damage, whereas you and I would only suffer a headache. The liable tortfeasor is responsible for all damages from the accident.

Here, that principle was applied to Ricky Koch, 54, a foreman for Economy Iron Works who fell backwards on a stairwell on the public vessel S/S Altair on February 2, 2012, during a pre-bid inspection. Koch sued the U.S. government for vessel negligence through Section 905(b) of the LHWCA, claiming neck, arm, and knee injuries that necessitated a cervical fusion and one total knee replacement. At least 3 additional knee surgeries and a posterior cervical fusion revision were planned. U.S. District Court Judge Susie Morgan of the Eastern District of Louisiana awarded $2.83M after a bench trial, including pain and suffering of $1.3M. The federal government appealed.

Prior to his fall, Koch needed total knee replacements, had been diagnosed with carpal tunnel syndrome, and had cervical fusion surgery in 2008. In January 2012 -- less than a month prior to the fall - rheumatologist Merlin Wilson, M.D., told Koch that he needed a total knee replacement "in the worse way."

The federal government argued that Koch's damages were not due to the fall. Its orthopedic surgeon reviewed reports of the MRI films and saw no changes before and after the accident.

The Fifth Circuit recounts the eggshell-skull rule included in the Restatement (Third) of Torts and points out two exceptions: (1) if a person is disabled or incapacitated prior to an accident, the defendant is only liable for the additional harm or aggravation he caused; and, (2) when a plaintiff has a preexisting condition that would inevitably worsen, damages should be reduced to what would have been suffered even in the absence of the subsequent injury, but the burden of proof in such cases is upon the defendant to prove the extent of the damages that the preexisting condition would inevitably have caused.

As to the first exception, the Fifth Circuit held it did not apply because there was not evidence that Koch was disabled prior to his fall. Koch, his wife, and a supervisor testified that Koch had been working and expected that he would continue. The second exception is not discussed. A key part to that exception is that the defendant has the burden of proof to show what plaintiff would have suffered even if he had not fallen. For example, testimony from doctors as to pain, suffering, and surgery that would have happened regardless of the fall, as well as a presumed shortened industrial work life due to serious preexisting orthopedic conditions. There is no indication the government presented evidence of that and instead sought to show that none of the damages were due to the fall. The Fifth Circuit, applying the clear-error standard to the district court's reliance on Koch's treating physicians, rejected that argument.

The government also argued the trial court applied the wrong standard, making the unusual argument that the eggshell-skull rule only applies in cases where the preexisting condition is latent. The Fifth Circuit said there was no legal support for that limitation, and the panel also rejected the government's argument that Judge Morgan abused her discretion for failing to allow an additional expert opinion developed after the report deadline. The government made no proffer of that evidence. The $2.83M judgment was affirmed in all respects.

Koch v. United States, 2017 U.S. App. LEXIS 8486 (5th Cir. May 12, 2017).

Posted in 905(b), Damages: Preexisting Condition    Tagged with 905(b), eggshell skull, vessel negligence



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