On an afternoon like any other, a new lawsuit lands on an insurance company adjuster's desk. They learn that an employee driving a commercial motor vehicle for its insured crashed into and injured someone on a nearby highway. The insured's employee is at fault per the police report. The person claims to have lasting neck and back injuries, which required surgery a few months ago. The insurance adjuster assigns counsel to begin litigating the case for its insured, now turned defendant. Three months into discovery, the defendant's counsel finds a would-be opening. The plaintiff had a similar accident five years ago and reported hurting their upper back. The adjuster and the attorney are relieved—this is now an eggshell plaintiff case.

Many if not all of us learned about the concept of an eggshell or thin skull plaintiff during our first-year Torts class. In 1988, the Supreme Court of Texas in Coates v. Whittington found that a tortfeasor takes a plaintiff as they find them, reciting the same rule from its 1889 decision in Driess v. Friedrick. Houston's 14th District Court of Appeals in Katy Springs & Manufacturing v. Favalora described that when "a latent condition does not cause pain or suffering, but that condition plus a [new] injury caused such pain, then the [new] injury not the latent condition is the proximate cause," of the plaintiff's pain. The phrase describes someone with preexisting medical conditions. The question for the jury is whether those conditions were either dormant or active before, or just somehow aggravated by, the defendant's wrongdoing alleged in the lawsuit.