JOHN A. GORMAN, Magistrate Judge.
Now before the Court is the Plaintiff's motion in limine (Doc. #66). This motion raises 13 issues. Defendant has filed a response, so the motion is fully briefed. The motion is GRANTED IN PART, DENIED IN PART, and DEFERRED IN PART, as follows:
1. Plaintiff asks that the Court not allow the jury to speculate about "alternate causes of Willis's shoulder pain" without supporting medical expert opinion. He asserts that the only medical causation expert is his treating physician, Dr. Crickard. Because BNSF does not have a counter-expert on causation, BNSF should not be allowed to ask the jury to speculate about other reasons (such as his weight) for his pain.
BNSF responds that it has no intention of asking the jury to speculate about alternate causes of Willis's shoulder injury about which no competent witness has testified. However, it asserts that it is permitted to make arguments about the causes of Willis's pain if they are supported by medical testimony in the case. BNSF further states that it is entitled to introduce evidence and make arguments regarding Willis's burden of proof on causation regarding credibility of causation witnesses.
It is a truism that the jury cannot be invited to speculate; its verdict must be based on the evidence. Until the Court hears the testimony of Willis's causation expert, however, it cannot rule in a vacuum about arguments or evidence BNSF may or may not offer. Such matters will have to be determined during trial. The motion is denied; if the issue arises during trial, the matter can be addressed at that time.
2. Plaintiff asks the Court to treat this case as an "egg shell plaintiff" case rather than an apportionment case. Specifically, Plaintiff states that the evidence shows that Willis had a pre-existing condition that was asymptomatic prior to the underlying event. Given that fact, giving an eggshell instruction would be proper, while giving an apportionment instruction would be an error.
The "eggshell skull" doctrine provides that a tortfeasor takes its victim as it finds him. Cobige v. City of Chicago, 651 F.3d 780, 782 (7th Cir 2011); Brackett v. Peters, 11 F.3d 78, 81 (7th Cir 1993). "If a tortfeasor inflicts a graver loss on his victim than one would have expected because the victim had some pre-existing vulnerability, that it's the tortfeasor's bad luck." Schmude v. Tricam Industries, Inc., 556 F.3d 624 (7th Cir 2009). Thus, a tortfeasor is fully liable for any damages resulting from its wrongful act even if the victim had a pre-existing condition that made the consequences of the wrongful act more severe for him than they would have been for a person without the condition. Meyers v. Wal-Mart Stores, East, Inc., 257 F.3d 625, 632 (6th Cir 2001); Figueroa-Torres v. Toledo-Davila, 232 F.3d 270, 275-76 (1st Cir 2000); Jordan v. Atchison, Topeka & Santa Fe Railway Co., 934 F.2d 225, 228-29 (9th Cir 1991); Maurer v. United States, 668 F.2d 98, 99-100 (2d Cir 1981) (per curiam). The eggshell doctrine can apply in FELA cases involving pre-existing conditions. See Lancaster v. Norfolk & Western Railway Co., 773 F.2d 807, 822 (7th Cir 1985).
However, a tortfeasor cannot be held liable for damages that it did not actually cause. Consequently, a tortfeasor is liable for the aggravation of a preexisting condition, including "acceleration of a progressive disease ." Reising v. United States, 60 F.3d 1241, 1244 (7th Cir 1995), quoting Gruidl v. Schell, 519 N.E.2d 963, 967 (Ill.App. 1988). Where the damages are limited to aggravation, the plaintiff can recover only for that part of his suffering that was "activated, aggravated or accelerated" by the negligence. Reising, 60 F.3d at 1244, quoting Gruidi, 519 N.E.2d at 967-68.
Which of these two doctrines applies in a given situation is sometimes confusing. In a recent FELA case against BNSF, a Colorado state court thoroughly discussed the two doctrines and when they should be reflected in jury instructions. McLaughlin v. BNSF Railway Company, 300 P.3d 925, 937 (CO APP 2012), cert denied, 2013 WL 1192590 (CO). The Court was specifically confronted with the propriety of giving both instructions to the jury. The Court found that there were two circumstances when giving both an eggshell instruction and an aggravation instruction would be proper: (1) when there was conflicting evidence of whether the pre-existing condition was dormant or asymptomatic before the injury; and (2) when the pre-existing condition was symptomatic before the injury, but the aggravation to the symptoms was greater than it would have been in the absence of the pre-existing condition.
In the case before this Court, the Court has been pointed to no evidence at all of prior symptoms. There is therefore no conflicting evidence on this point: Jeffrey Willis was asymptomatic before this incident. Neither situation applies, so (assuming arguendo that McLaughlin governs) giving both instructions is not warranted. Instead, the Court must consider which of the two is proper.
The Seventh Circuit has reviewed a similar fact situation. In Reising, supra , the plaintiff suffered from bulging discs prior to the accident, even to the point of being symptomatic with back pain. Following the accident, however, new pain appeared, namely pain that radiated down his leg. The trial court had found that the evidence showed "some limited acceleration of aggravation" of the back problems but was unable to determine whether the new pain would have eventually occurred as his condition progressed. The Seventh Circuit found that the determination to apply aggravation theory was not error. 60 F.3d at 1244.
In Reed v. Union Pacific Railroad Co., 185 F.3d 712 (7th Cir 1999), the evidence was undisputed that the plaintiff suffered from previously-undiagnosed and asymptomatic degenerative disk disease. The plaintiff presented evidence of this condition and argued that the eggshell plaintiff instruction should be given. Defendant submitted the evidence to rebut causation and to argue that the injuries were the result not of any negligence but of the condition itself. The Seventh Circuit found that an aggravation instruction should have been given.
If a plaintiff has a coronary condition that makes him more likely to suffer a heart attack, and the tortfeasor's conduct results in a heart attack, the tortfeasor is liable for all damages resulting from the that heart attack, even though a person without the condition would not have suffered a heart attack. That is the eggshell plaintiff doctrine. If a plaintiff has a deteriorating shoulder condition and the tortfeasor's conduct causes pain in that shoulder, then the tortfeasor is liable for the pain and for any acceleration of the condition, but is not liable for the underlying condition. That is the aggravation doctrine.
There is no dispute in the case before this Court that Mr. Willis suffered from a pre-existing condition: his physician observed a bone spur and subsurface fraying of his right rotator cuff, conditions that were not acute injuries caused by the incident in question but were rather the result of shoulder stress and "wear and tear" over the years. BNSF is not liable for the existence of those conditions on the day when Plaintiff was setting the handbrake, when he first felt pain. BNSF is liable for all aggravation of ...