By Colin H. Dunn
A negligence defendant must take the plaintiff as he finds him, even if the plaintiff’s “eggshell skull” results in his suffering an injury that ordinarily would not be reasonably foreseeable. W. Page Keeton, “Prosser & Keeton on Torts,” Section 43, at Pages 291–92 (5th ed. 1984).
Per the so-called “eggshell plaintiff” doctrine, “where an accident results in bringing a dormant disease or condition into activity, the accident, rather than the disease is the proximate cause of the injury.” So, in Lough v. BNSF R. Co., 2013 IL App (3d) 120305, when the plaintiff’s decedent died 22 months after an automobile crash, the plaintiff relied upon that doctrine to support his wrongful-death claim against the defendant-driver and his employer.
Turns out that at the time of the crash, the decedent had suffered for years from several health problems, including chronic obstructive pulmonary disease (COPD); severe depression that, according to his doctor, was “unrelenting in its severity”; memory changes; and severe arthritis problems in his neck and back, which did not resolve prior to his death. Prior to the crash, his back pain had been “chronic and unresponsive to surgical or pharmacological remedies.”
One of the decedent’s doctors testified that, prior to the crash, he was susceptible to increased injury beyond a healthy individual and that any trauma would likely result in greater pain, immobility and inactivity. After the crash, emergency room medical testing showed no acute traumatic abnormality in his neck or back following the accident.
His doctor, who had last examined him about a month before his death, testified that he “would have a difficult time connecting that particular motor vehicle accident after 22 months with the patient’s death.” When asked, “Is it more probably true than not in your opinion that there is no connection between the car accident and the man’s death?” the doctor replied, “I would have to concur with that.”
A second doctor who treated the decedent could not quantify the extent to which the accident impacted his degenerative condition, noting “it’s anybody’s guess as to how exactly much more it hurt him” and “it’s hard to quantify with a specific number.”
The cause of death on his death certificate indicated congestive heart failure, with an onset of two months, secondary to COPD/emphysema three months. No autopsy was performed. The defendants moved for summary judgment, claiming the plaintiff failed to adduce sufficient evidence establishing that their actions were a proximate cause of the decedents death.
The 3rd District Appellate Court began its analysis by noting that “[t]he traditional statement of proximate cause requires plaintiff to prove that defendant’s negligence ‘more probably than not’ caused plaintiff’s injury.” Holton v. Memorial Hospital, 176 Ill.2d 95, 107 (1997). The term “proximate cause” describes two distinct requirements: cause in fact and legal cause. Lee v. Chicago Transit Authority, 152 Ill.2d 432, 455 (1992).
“[L]iability cannot be premised merely upon surmise or conjecture as to the cause of the injury.” Id. “Cause in fact concerns whether the defendant’s conduct is a material factor in bringing about the injury.” Majetich v. P.T. Ferro Construction Co., 389 Ill.App.3d 220, 224 (2009).
“A defendant’s conduct is a material factor in bringing about the injury if, absent the conduct, the injury would not have occurred.” Id. “Legal cause deals with a question of foreseeability.” Id. “Absent affirmative and positive evidence that defendant proximately caused plaintiff’s injuries, a plaintiff fails to establish the existence of a genuine issue of material fact.” Id.
Evidence of proximate cause “must not be contingent, speculative or merely possible, but that there must be such degree of probability as to amount to a reasonable certainty that such causal connection exists.” Id. Liability “cannot be predicated upon speculation, surmise or conjecture as to the cause of the injuries.” Schultz v. Hennessy Industries, Inc., 222 Ill.App.3d 532, 540 (1991). “Proximate cause can only be established when there is a reasonable certainty that the defendant’s acts caused the injury.” Id.
The plaintiff’s “eggshell” argument cracked under that analysis because he failed to provide sufficient evidence to allow a jury to consider the causal connection between the automobile accident and decedent’s death. There was no evidence suggesting the automobile accident caused or aggravated the decedent’s congestive heart failure or COPD/emphysema.
The court also rejected the plaintiff’s argument that the trial court had improperly required him to present “direct causation testimony.” Though the court agreed that “[p]roximate cause can be sufficiently established by circumstantial evidence when an inference may reasonably be drawn from it,” there was “[n]o evidence … to support the conclusion that the accident ‘more probably than not’ contributed to decedent’s death.”
One treating physician specifically testified that the two incidents were not related. Another testified that it would be impossible to quantify how much, if any, additional pain the decedent suffered at the time of his death from this accident. The court also noted that the plaintiff did not present any testimony suggesting that an automobile accident can cause congestive heart failure or COPD/emphysema, the causes of death listed on the decedent’s death certificate.
The failure to provide sufficient evidence of causation ended up being fatal to the plaintiff’s wrongful-death claim.