WHAT IF THE INJURED VICTIM HAS A PRE-EXISTING CONDITION?
Many times when pursuing a personal injury claim for a traumatic brain injury case, the Defense Counsel will try to argue that the plaintiff had a pre-existing condition that included the same symptoms and complaints as the current brain injury that is the subject of the litigation. In doing so, the Defense will attempt to limit the damages recoverable for the plaintiff in the traumatic brain injury case. In dealing with this argument, the legal doctrines of an “eggshell” plaintiff, exacerbation of a prior condition, and substantial causation are on point. Also important to note, the Federal government’s Acute Concussion Evaluation (ACE) states that prior history of anxiety or depression is a risk factor for protracted recovery. Plaintiff’s Counsel should present to the jury that the injured victim was an unusually susceptible plaintiff and therefore prone to being injured. The foundational legal principle is: “the Defendant takes its Plaintiff as he finds him.” Simply, the Plaintiff should not be prejudiced for being in a condition that makes him more susceptible to being injured.