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Wet floor signThe plaintiff fell and suffered injuries while aboard the S.S. Altair, a public vessel owned by the United States Maritime Administration. Plaintiff was a 54-year-old employee of an iron works company who was inspecting the vessel for his employer’s bid on repair work.

During the vessel “walkthrough,” Plaintiff arrived at a stairwell leading down to the winch room. The chief engineer flipped the light switch at the top of the stairwell, but the fluorescent lights didn’t fully illuminate the area. The engineer led Plaintiff and others down the stairwell, which became progressively darker. While some used flashlights to help illuminate their path, Plaintiff held on to the handrails with both hands. However, he missed the last step in the dark and fell backwards, striking his head, neck, and shoulders on the bulkhead.

Essentially incapacitated and experiencing severe pain in his knees, neck, and back, Plaintiff remained at home, unable to return to work. When his symptoms didn’t improve after a few days, he went to an urgent care clinic, where he was referred to an orthopedic surgeon. The orthopedic surgeon noted Plaintiff’s history of osteoarthritis in his knees but concluded that the shipboard fall exacerbated his preexisting osteoarthritic conditions and caused the urgent necessity for bilateral knee replacements.

There was no doubt that Plaintiff had preexisting conditions: in 2002, he was diagnosed with a degenerative disc disease; in 2004, he was diagnosed with multiple joint arthritis; in 2005, a rheumatologist, diagnosed Plaintiff with generalized osteoarthritis and concluded that he needed total knee replacement. In 2007, Plaintiff saw a neurosurgeon, who found that Plaintiff had a history of “progressive lower back pain for many years” and documented, inter alia, carpal tunnel syndrome. In 2008, the neurosurgeon performed cervical spine fusion surgery of his C3-4 and C4-5. Finally, Plaintiff saw another orthopedic surgeon who said he needed total knee replacement surgery “in the worst way.”

But before the knee replacement, the orthopedic surgeon told Plaintiff to see a neurosurgeon for his neck symptoms that had manifested after the fall. Plaintiff saw a neurosurgeon who had previously performed an anterior cervical discectomy and fusion at his C3-4 and C4-5 vertebrae years earlier. The neurosurgeon concluded that Plaintiff herniated his C6-7 disc as a result of the fall aboard the Altair and aggravated his cervical spondylosis in his C5-6 discs. The neurosurgeon recommended and performed an anterior cervical discectomy and fusion at C5-6 and C6-7.

Following this spine surgery, Plaintiff had post-surgical complications, including carpal tunnel problems in his hands. Although he had mild carpal tunnel prior to the fall, the neurosurgeon said it was worsened by his neck problems associated with his C6 and C7 nerve roots. In 2013, the neurosurgeon performed a right carpal tunnel release on Plaintiff.

However, Plaintiff’s symptoms—including severe pain in his neck, shoulders, arms, and hands—worsened after the 2012 surgery. The neurosurgeon concluded that because of his persisting pain and discomfort, a posterior approach cervical fusion was required. The neurosurgeon recommended that Plaintiff first have and recover from the knee replacements before undergoing the posterior cervical surgery. In 2014, the orthopedic surgeon performed a right total knee replacement, and at the time of trial, Plaintiff was scheduled to have the left knee replacement as soon as he had fully recovered from the first knee replacement. The neurosurgeon also recommended Plaintiff have a left carpal tunnel release.

Plaintiff sued the Government for damages for past and future medical care, lost wages, and pain and suffering. He alleged that the Government was liable due to its negligence in failing to provide a safe work place and adequate lighting on the vessel. Plaintiff’s supervisor testified that he knew of Plaintiff’s health issues prior to the accident, but that they never impacted his ability to work or his mobility on the job. He expected Plaintiff to work for another five to 10 years before retiring. Plaintiff’s treating surgeons testified that Plaintiff’s fall caused his injuries, exacerbation of preexisting conditions and disability… and that all his subsequent surgeries were necessitated by that accident. The orthopedic surgeon also testified that he would never be able to return to any type of gainful employment due to the injuries sustained in his fall.

At trial, the Government contended that, prior to his accident, Plaintiff had become disabled by his painful chronic osteoarthritis in both his knees, as well as the degenerative disc disease in his cervical spine and carpal tunnel syndrome. Although Plaintiff’s preexisting conditions were undisputed, the district court rejected the Government’s argument that Plaintiff had been disabled by them prior to his accident. Following trial, the district court found the Government’s negligence in failing to provide adequate lighting in the stairwell was the factual and legal cause of Plaintiff’s accidental fall, his injuries, the exacerbation of his preexisting conditions, and his disability. The district court awarded damages of $2.83 million, including $1.3 million for his pain and suffering.

On appeal, the Government argued that: (1) the district court applied the wrong legal standard applicable to cases in which the injured plaintiff had a diagnosed preexisting medical condition; (2) the district court erred in holding that the accident was the sole cause of Plaintiff’s damages; and (3) the district court abused its discretion in limiting the testimony of the Government’s expert witness, an orthopedic surgeon.

Circuit Judge James L. Dennis noted in his opinion that in determining that the Plaintiff was entitled to recover for all his harm and disability—without any discount or reduction because of his preexisting osteoarthritic knee and degenerative spinal conditions—the district court applied the principles in Maurer v. United States (2d Cir. 1997):

It is a settled principle of tort law that when a defendant’s wrongful act causes injury, he is fully liable for the resulting damage even though the injured plaintiff had a preexisting condition that made the consequences of the wrongful act more severe than they would have been for a normal victim. The defendant takes the plaintiff as he finds him. A plaintiff’s recovery for damages caused by a defendant’s wrongful act may not be proportionately reduced because of a preexisting weakness or susceptibility to injury such as an osteoarthritic condition or a weakness caused by a previous injury.

Judge Dennis noted that there are two exceptions to the general rule: (1) when a plaintiff is incapacitated or disabled prior to an accident, the defendant is liable only for the additional harm or aggravation that he caused; and (2) when a plaintiff has a preexisting condition that would inevitably worsen, a defendant causing subsequent injury is entitled to have the plaintiff’s damages discounted to reflect the proportion of damages that 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.

The district court found that neither exception applied here and concluded that, because the Government’s negligent failure to safely light the stairwell was the factual and legal cause of Plaintiff’s accidental fall and its disabling consequences, it was fully liable for his resulting harm and disability, even though Plaintiff’s preexisting conditions made the consequences of the Government’s negligence more severe than they would have been for an ordinary victim.

The Government contended, however, that Maurer was inapplicable because it is an “eggshell skull” plaintiff case, and that the “eggshell skull” concept applies only if the plaintiff’s preexisting condition was completely latent and had not manifested itself prior to the plaintiff’s accident caused by the defendant. The Fifth Circuit found that argument to have no merit and stated that it and district courts within the circuit have approved of the “thin skull,” “eggshell skull,” or “defendant takes the victim as found” rule without limiting its application to latent or unmanifested preexisting conditions. The Fifth Circuit concluded that the district court didn’t apply the wrong legal standard in this case with regard to Plaintiff’s preexisting medical conditions.

The Government argued that the totality of the medical evidence demonstrated that Plaintiff’s preexisting conditions of spinal degenerative disease and osteoarthritic disease of his knees had caused him to become disabled prior to his fall on the Altair so that the district court’s findings of facts to the contrary are clearly erroneous and should be vacated. However, the Fifth Circuit’s review of the record didn’t produce “a definite and firm conviction that a mistake has been committed,” and so it couldn’t characterize as clearly erroneous the district court’s finding that Plaintiff had not been disabled by his deteriorating spinal condition and his osteoarthritic knee condition prior to his accidental fall aboard the Altair. In making its determination, the district court credited the testimony of Plaintiff’s neurosurgeon and orthopedic surgeon, who testified that Plaintiff hadn’t been disabled by his preexisting spinal and knee conditions prior to his accident. Both experts testified that all the surgeries performed and planned after Plaintiff’s fall were necessitated by the accident.

In contrast with Plaintiff’s neurosurgeon’s findings, the Government’s orthopedic expert saw no signs or changes between Plaintiff’s MRI films taken before and after the 2012 accident. The radiologist who made the films filed a report to the same effect. Based on these readings, the government’s orthopedic expert thought it was unlikely that Plaintiff had received a herniated disc or had been seriously harmed by the 2012 accident. However, the Government’s expert examined Plaintiff only once in 2014, which was after the pre-trial surgeries performed by Plaintiff’s surgeons and long after the accident. No one except those two surgeons had performed surgery on him. The district court resolved the conflict in the evidence in favor of the testimony of the treating physicians and surgeons.

The judgment of the district court was affirmed.

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